OFFERING CIRCULAR
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U.S.$250,000,000 Grupo Famsa, S.A.B. de C.V. 7.250% Senior Notes due 2020 We are offering U.S.$250,000,000 aggregate principal amount of our 7.250% Senior Notes due 2020. We will pay interest on the notes on June 1 and December 1 of each year. The first interest payment will be made on December 1, 2013. The notes will mature on June 1, 2020. At our option, we may redeem the notes, in whole or in part, on or after June 1, 2017 at the redemption prices set forth in this offering circular, plus accrued and unpaid interest to the date of redemption. Prior to June 1, 2017, we may redeem the notes, in whole or in part, by paying the principal amount of the notes, plus the applicable “make-whole” premium and accrued and unpaid interest. Prior to June 1, 2016 we may also redeem up to 35% of the notes with the proceeds of certain equity offerings. See “Description of Notes—Optional Redemption.” In addition, in the event of certain changes in the Mexican withholding tax treatment relating to payments on the notes, we may redeem all (but not less than all) of the notes at 100.0% of their principal amount, plus accrued and unpaid interest. There is no sinking fund for the notes. The notes will be our senior unsecured general obligations. The notes will be unconditionally guaranteed by certain of our subsidiaries, jointly and severally, on a senior unsecured basis. The notes and guarantees will rank equally in right of payment with all of our and the subsidiary guarantors’ existing and future senior indebtedness and senior to all of our and the subsidiary guarantors’ existing and future subordinated indebtedness, subject to certain statutory preferences under Mexican law. The notes and guarantees will be structurally subordinated to the indebtedness and trade payables of our non-guarantor subsidiaries. The notes will effectively rank junior in right of payment to all of our and the subsidiary guarantors’ secured indebtedness to the extent of the value of the assets securing such indebtedness. We have launched a cash tender offer (the “Tender Offer”) for any and all of our U.S.$200,000,000 aggregate principal amount of 11.0% senior notes due 2015 (the “Senior Notes due 2015”) validly tendered and accepted by us on or before June 12, 2013 and a consent solicitation to, among other things, eliminate most of the restrictive covenants and certain of the events of default contained in the indenture governing the Senior Notes due 2015 and to shorten the minimum notice period to holders required for a redemption from thirty days to six business days prior to the redemption date (with an additional minimum notice of three business days to the Trustee) (the “Consent Solicitation”). We intend to use the net proceeds from this offering (i) to pay the consideration for the Tender Offer and Consent Solicitation and accrued and unpaid interest on the Senior Notes due 2015, (ii) to redeem any Senior Notes due 2015 that are not purchased under the Tender Offer and Consent Solicitation in accordance with the terms of the indenture governing the Senior Notes due 2015, as amended following the Consent Solicitation, if applicable, (iii) to pay fees and expenses incurred in connection with the Tender Offer and Consent Solicitation, and (iv) to the extent any proceeds remain, for general corporate purposes. The Tender Offer and Consent Solicitation are not being made pursuant to this offering circular. The closing of the Tender Offer and Consent Solicitation is contingent upon the closing of this offering. No public market currently exists for the notes. Application has been made for the listing particulars to be approved by the Irish Stock Exchange and to admit the notes to listing on the Official List of the Irish Stock Exchange and to trading on the Global Exchange Market. This Offering Memorandum constitutes a Listing Particulars for the purposes of listing on the Official List of the Global Exchange Market. Investing in the notes involves risks. See “Risk Factors” beginning on page 19. Price: 99.325% plus accrued interest, if any, from May 31, 2013. Delivery of the notes in book-entry form will be made on or about May 31, 2013. THE NOTES HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE NATIONAL SECURITIES REGISTRY (REGISTRO NACIONAL DE VALORES) MAINTAINED BY THE MEXICAN NATIONAL BANKING AND SECURITIES COMMISSION (COMISION NACIONAL BANCARIA Y DE VALORES, OR CNBV), AND MAY NOT BE OFFERED OR SOLD PUBLICLY, OR OTHERWISE BE THE SUBJECT OF BROKERAGE ACTIVITIES, IN MEXICO, EXCEPT PURSUANT TO A PRIVATE PLACEMENT EXEMPTION SET FORTH UNDER ARTICLE 8 OF THE LEY DEL MERCADO DE VALORES, AS AMENDED (THE “MEXICAN SECURITIES MARKET LAW”). AS REQUIRED UNDER THE MEXICAN SECURITIES MARKET LAW, WE WILL NOTIFY THE CNBV OF THE OFFERING OF THE NOTES OUTSIDE OF MEXICO. SUCH NOTICE WILL BE DELIVERED TO THE CNBV TO COMPLY WITH A LEGAL REQUIREMENT AND FOR INFORMATION PURPOSES ONLY. THE DELIVERY TO, AND THE RECEIPT BY, THE CNBV OF SUCH NOTICE, DO NOT CONSTITUTE OR IMPLY ANY CERTIFICATION AS TO THE INVESTMENT QUALITY OF THE NOTES, OUR SOLVENCY, LIQUIDITY OR CREDIT QUALITY OR THE ACCURACY OR COMPLETENESS OF THE INFORMATION PROVIDED IN THIS OFFERING CIRCULAR. THE INFORMATION CONTAINED IN THIS OFFERING CIRCULAR IS EXCLUSIVELY THE RESPONSIBILITY OF THE COMPANY AND HAS NOT BEEN REVIEWED OR AUTHORIZED BY THE CNBV. THE ACQUISITION OF THE NOTES BY AN INVESTOR WHO IS A RESIDENT OF MEXICO WILL BE MADE UNDER ITS OWN RESPONSIBILITY. ______The notes have not been, and will not be, registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”). The notes may not be offered or sold within the United States or to U.S. persons, except to qualified institutional buyers in reliance on the exemption from registration provided by Rule 144A and to non-U.S. persons in offshore transactions in reliance on Regulation S. You are hereby notified that sellers of the notes may be relying on the exemption from the provisions of Section 5 of the Securities Act provided by Rule 144A. For certain restrictions on the transfer of the notes, see “Notice to Investors.”
Credit Suisse Citigroup
The date of this offering circular is October 23, 2013.
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TABLE OF CONTENTS
Page Page
Notice to New Hampshire Residents ...... iii Our Management ...... 106 Notice to Prospective Investors in the United Principal Shareholders ...... 112 Kingdom ...... iii Related Party Transactions ...... 113 Notice to Prospective Investors in the EEA ...... iii Description of Notes ...... 115 Available Information ...... iv Book-Entry; Delivery and Form ...... 167 Service of Process and Enforcement of Civil Notice to Investors ...... 177 Liabilities ...... v Plan of Distribution ...... 180 Disclosure Regarding Forward-Looking Notice to Canadian Investors ...... 185 Statements ...... vi General Information ...... 187 Presentation of Financial and Other Information .... vii Legal Matters ...... 188 Terms Used in This Offering Circular ...... x Independent Accountants ...... 188 Summary...... 1 Index to Consolidated and Combined Financial Risk Factors ...... 19 Statements ...... F-1 Use of Proceeds ...... 39 Exhibit A: Income Statement and Balance Sheet Exchange Rates ...... 40 Data and Financial Statements as of March Capitalization ...... 41 31, 2013 and December 31, 2012 and for the Selected Consolidated Financial Information ...... 42 Three Months Ended March 31, 2013 and Management’s Discussion and Analysis of 2012 ...... A-1 Financial Condition and Results of Operations ...... 46 Our Business ...... 64 ______
You should rely only on the information contained in this offering circular. Neither we nor the initial purchasers have authorized any other person to provide you with information that is different from or additional to that contained in this offering circular. If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and the initial purchasers are not, making an offer to sell or seeking offers to buy the notes in any jurisdiction where the offer or sale is not permitted. The information in this offering circular may only be accurate as of the date of this offering circular.
We are relying on an exemption from registration under the Securities Act for offers and sales of securities that do not involve a public offering. The notes are subject to restrictions on transferability and resale and may not be transferred or resold except as permitted under the Securities Act and the applicable state securities laws pursuant to registration or exemption therefrom. By purchasing the notes, you will be deemed to have made the acknowledgements, representations, warranties and agreements described under the heading “Notice to Investors” in this offering circular. You should understand that you will be required to bear the financial risks of your investment for an indefinite period of time.
Neither the CNBV nor the U.S. Securities and Exchange Commission (the “SEC”), nor any state securities commission has approved or disapproved of these securities or determined if this offering circular is truthful or complete. Any representation to the contrary is a criminal offense.
We have submitted this offering circular solely to a limited number of qualified institutional buyers in the United States and to investors outside the United States so they can consider a purchase of the notes. We have not authorized its use for any other purpose. This offering circular may not be copied or reproduced in whole or in part. It may be distributed and its contents disclosed only to the prospective investors to whom it is provided. By accepting delivery of this offering circular, you agree to these restrictions. See “Notice to Investors.”
This offering circular is based on information provided by us and by other sources that we believe are reliable. We cannot assure you that this information is accurate or complete. This offering circular summarizes
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certain documents and other information and we refer you to such documents and other information for a more complete understanding of what we discuss in this offering circular.
The initial purchasers make no representation or warranty, express or implied, as to the accuracy or completeness of the information contained in this offering circular. Nothing contained in this offering circular is, or shall be relied upon as, a promise or representation by the initial purchasers as to the past or future. We have furnished the information contained in this offering circular. The initial purchasers make no representation as to any of the information contained herein (financial, legal or otherwise) and assume no responsibility for the accuracy or completeness of any such information.
Neither we, nor the initial purchasers, nor any of our or the initial purchasers’ respective representatives is making any representation to any purchaser of the notes regarding the legality of an investment in the notes by such purchaser under any legal investment or similar laws or regulations. You should not consider any information in this offering circular to be legal, business or tax advice. You should consult your own attorney, business advisor and tax advisor for legal, business and tax advice regarding any investment in the notes.
We accept responsibility for the information contained in this offering circular and have taken all reasonable care to ensure that the information contained in this offering circular is, to the best of our knowledge, in accordance with the facts and contains no omission likely to affect its import. You should assume that the information contained in this offering circular is accurate only as of the date on the front cover of this offering circular.
The notes have not been and will not be registered with the National Securities Registry maintained by the CNBV. The information contained in this offering circular is exclusively our responsibility and has not been reviewed or authorized by the CNBV. The notes may not be publicly offered or sold in Mexico or otherwise be subject to brokerage activities in Mexico, except pursuant to the public placement exemption set forth in Article 8 of the Mexican Securities Market Law and this offering circular may not be publicly distributed in Mexico.
We reserve the right to withdraw this offering of the notes at any time, and we and the initial purchasers reserve the right to reject any commitment to subscribe for the notes in whole or in part and to allot to any prospective investor less than the full amount of notes sought by that investor. The initial purchasers and certain related entities may acquire for their own account a portion of the notes.
You must comply with all applicable laws and regulations in force in your jurisdiction and you must obtain any consent, approval or permission required by you for the purchase, offer or sale of the notes under the laws and regulations in force in your jurisdiction to which you are subject or in which you make such purchase, offer or sale, and neither we nor the initial purchasers will have any responsibility therefor.
We own or have rights to use the trademarks, service marks and trade names that we use in conjunction with the operation of our business. Some of the more important trademarks that we own or have rights to use that appear in this offering circular include: Famsa®, Famsa.com®, Auto Gran Crédito Famsa®, CisiAmo®, De Famsa a Famsa®, GarantiMax®, Giovanni Paolo®, Gran Crédito Famsa® and Verochi®, each of which may be registered or trademarked in Mexico, the United States and other jurisdictions. Solely for convenience, we may refer to our trademarks, service marks and trade names in this offering circular without the ™ and ® symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent permitted under applicable law, our rights to our trademarks, service marks and trade names. Each trademark, trade name or service mark of any other company appearing in this offering circular is, to our knowledge, owned by such other company.
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NOTICE TO NEW HAMPSHIRE RESIDENTS
NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A LICENSE HAS BEEN FILED UNDER RSA 421-B OF THE NEW HAMPSHIRE REVISED STATUTES, OR RSA 421-B, WITH THE STATE OF NEW HAMPSHIRE NOR THE FACT THAT A SECURITY IS EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN THE STATE OF NEW HAMPSHIRE IMPLIES THAT ANY DOCUMENT FILED UNDER RSA 421-B IS TRUE, COMPLETE AND NOT MISLEADING. NEITHER ANY SUCH FACT NOR THE FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE FOR A SECURITY OR A TRANSACTION MEANS THAT THE SECRETARY OF STATE OF THE STATE OF NEW HAMPSHIRE HAS PASSED IN ANY WAY UPON THE MERITS OR QUALIFICATIONS OF, OR RECOMMENDED OR GIVEN APPROVAL TO, ANY PERSON, SECURITY OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE MADE, TO ANY PROSPECTIVE PURCHASER, CUSTOMER OR CLIENT ANY REPRESENTATION INCONSISTENT WITH THE PROVISIONS OF THIS PARAGRAPH.
NOTICE TO PROSPECTIVE INVESTORS IN THE UNITED KINGDOM
This document is only being distributed to and is only directed at (i) persons who are outside the United Kingdom or (ii) to investment professionals falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order”) or (iii) high net worth entities, and other persons to whom it may lawfully be communicated, falling within Article 49(2)(a) to (d) of the Order (all such persons together being referred to as “relevant persons”). The notes are only available to, and any invitation, offer or agreement to subscribe, purchase or otherwise acquire such notes will be engaged in only with, relevant persons. Any person who is not a relevant person should not act or rely on this document or any of its contents.
NOTICE TO PROSPECTIVE INVESTORS IN THE EEA
To the extent that the offer of the notes is made in any European Economic Area (“EEA”) member state that has implemented Directive 2003/71/EC (together with any applicable implementing measures in any member state, the “Prospectus Directive”) before the date of publication of a prospectus in relation to the notes which has been approved by the competent authority in that member state in accordance with the Prospectus Directive (or, where appropriate, published in accordance with the Prospectus Directive and notified to the competent authority in that member state in accordance with the Prospectus Directive), the offer (including any offer pursuant to this document) is only addressed to qualified investors in that member state within the meaning of the Prospectus Directive or has been or will be made otherwise in circumstances that do not require the issuer to publish a prospectus pursuant to the Prospectus Directive.
IN CONNECTION WITH THE ISSUE OF THE NOTES, CREDIT SUISSE SECURITIES (USA) LLC, AS STABILIZATION MANAGER, OR THE PERSONS ACTING ON ITS BEHALF, MAY OVER- ALLOT NOTES OR EFFECT TRANSACTIONS WITH A VIEW TO SUPPORTING THE MARKET PRICE OF THE NOTES AT A LEVEL HIGHER THAN THAT WHICH MIGHT OTHERWISE PREVAIL. HOWEVER, WE CANNOT ASSURE YOU THAT THE STABILIZATION MANAGER OR THE PERSONS ACTING ON ITS BEHALF WILL UNDERTAKE ANY STABILIZATION. ANY STABILIZATION MAY BEGIN ON OR AFTER THE DATE ON WHICH ADEQUATE PUBLIC DISCLOSURE OF THE TERMS OF THE OFFER OF THE NOTES IS MADE AND, IF BEGUN, MAY BE ENDED AT ANY TIME, BUT MUST END NO LATER THAN THE EARLIER OF 30 DAYS AFTER THE ISSUE DATE OF THE NOTES AND 60 DAYS AFTER THE DATE OF THE ALLOTMENT OF THE NOTES. ANY STABILIZATION OR OVER-ALLOTMENT MUST BE CONDUCTED BY THE STABILIZATION MANAGER (OR PERSONS ACTING ON ITS BEHALF) IN ACCORDANCE WITH ALL APPLICABLE LAWS AND RULES.
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AVAILABLE INFORMATION
To permit compliance with Rule 144A under the Securities Act in connection with resales of notes, we will be required under the indenture under which the notes are issued (the “Indenture”), upon the request of a holder of Rule 144A notes or Regulation S notes (during the restricted period, as defined in the legend included under “Notice to Investors”), to furnish to such holder and any prospective purchaser designated by such holder the information required to be delivered under Rule 144A(d)(4) under the Securities Act if at the time of the request we are neither a reporting company under Section 13 or Section 15(d) of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), nor exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act. As long as we maintain this exemption, we will not be required under the Indenture to deliver information otherwise required to be delivered under Rule 144A(d)(4) under the Securities Act.
The Indenture further requires that we furnish to the Trustee (as defined herein) all notices of meetings of the holders of notes and other reports and communications that are generally made available to holders of the notes. At our request, the Trustee will be required under the Indenture to mail these notices, reports and communications received by it from us to all record holders of the notes promptly upon receipt. See “Description of Notes.”
We will make available to the holders of the notes, at the corporate trust office of the Trustee at no cost, copies of the Indenture as well as this offering circular, including a review of our operations, and annual audited consolidated financial statements prepared in conformity with International Financial Reporting Standards (“IFRS”) as of December 31 2012 and 2011. Information will also be available at the office of the paying agent in Ireland.
Application has been made to admit the notes to listing on the Official List of the Irish Stock Exchange and to trading on the Global Exchange Market, a market of the Irish Stock Exchange, in accordance with its rules. This offering circular forms, in all material respects, the listing memorandum for admission to the Irish Stock Exchange. We will be required to comply with any undertakings given by us from time to time to the Irish Stock Exchange in connection with the notes, and to furnish to them all such information as the rules of the Irish Stock Exchange may require in connection with the listing of the notes. There can be no assurance that the notes will be listed on the Official List of the Irish Stock Exchange and admitted for trading on the Global Exchange Market thereof. We estimate that expenses for the admission of the notes to listing on the Official List of the Irish Stock Exchange and to trading on the Global Exchange Market will be equal to €3,000.
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SERVICE OF PROCESS AND ENFORCEMENT OF CIVIL LIABILITIES
We are a publicly traded variable capital corporation (sociedad anónima bursátil de capital variable) and our subsidiaries (except for Famsa, Inc. and Famsa Financial Inc., each a subsidiary organized in the United States) are variable capital corporations (sociedades anónimas de capital variable) and in the case of Banco Ahorro Famsa (as defined herein), a corporation (sociedad anónima) authorized to conduct banking activities as an institución de banca múltiple, organized under the laws of Mexico, and headquartered, managed and operated outside of the United States (principally in Mexico). Almost all of our directors and officers reside outside the United States. Substantially all of our and the subsidiary guarantors’ assets and the assets of our directors and officers are located outside the United States (principally in Mexico). As a result, it may not be possible for investors to effect service of process within the United States or in any other jurisdiction outside of Mexico upon us, our directors or officers or our subsidiaries (except for Famsa, Inc. and Famsa Financial Inc.) or to enforce against such parties in any jurisdiction outside of Mexico judgments predicated upon the laws of any such jurisdiction, including any judgment predicated upon the federal and state securities laws of the United States. We have been advised by our Mexican counsel, Mijares, Angoitia, Cortés y Fuentes, S.C., that there is doubt as to the enforceability in original actions in Mexican courts of civil liabilities under the laws of any jurisdiction outside of Mexico, including any judgment predicated solely upon the federal and state securities laws of the United States.
See “Risk Factors—Risk Factors Related to the Notes—You may not be able to effect service of process on us, our subsidiaries or directors or to enforce in Mexican courts judgments obtained against us in the United States.”
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DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This offering circular contains forward-looking statements. These forward-looking statements include, without limitation, those regarding our future financial position and results of operations, our strategy, plans, objectives, goals and targets, future developments in the markets in which we participate or are seeking to participate or anticipated regulatory changes in the markets in which we operate or intend to operate. In some cases, forward-looking statements can be identified by terminology such as “aim,” “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “forecast,” “guidance,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should” or “will” or the negative of such terms or other comparable terminology.
By their nature, forward-looking statements involve risks and uncertainties because they relate to events and depend on circumstances that may or may not occur in the future. We caution potential investors that forward looking statements are not guarantees of future performance and are based on numerous assumptions and that our actual results of operations, including our financial condition and liquidity may differ materially from (and be more negative than) those made in, or suggested by, the forward-looking statements contained in this offering circular. In addition, even if our results of operations, including our financial condition and liquidity and the development of the industries in which we operate, are consistent with the forward-looking statements contained in this offering circular, those results or developments may not be indicative of results or developments in subsequent periods. Important factors that could cause these differences include, but are not limited to:
risks related to our competitive position;
risks related to our business, to our strategy, to our expectations about growth in demand for our products and services and to our business operations, financial condition and results of operations;
our access to funding sources, and the cost of the funding;
changes in regulatory, administrative, political, fiscal or economic conditions, including fluctuations in interest rates and growth or diminution of the Mexican and U.S. furniture, electronics and household appliances markets;
risks associated with our subsidiary Banco Ahorro Famsa, S.A., Institución de Banca Múltiple, (“BAF”) including regulatory, credit, market and any other risks related to financing activities and the Mexican consumer finance market and retail banking market generally;
variations in loan default rates by our clients, as well as in our recording of provisions for doubtful loans;
risks associated with market demand for and liquidity of the notes;
foreign currency exchange fluctuations relative to the U.S. Dollar against the Mexican Peso;
risks related to Mexico’s social, political or economic environment;
risks related to the United States’ social, political or economic environment as it relates to the U.S. Hispanic population; and
other factors described under “Risk Factors” and elsewhere in this offering circular.
Potential investors should read the sections of this offering circular entitled “Risk Factors” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Our Business” for a more complete discussion of the factors that could affect our future performance and the markets in which we operate. In light of these risks, uncertainties and assumptions, the forward-looking events described in this offering circular may not occur. We undertake no obligation to update or revise any forward-looking statement, whether as a result of new information or future events or developments.
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PRESENTATION OF FINANCIAL AND OTHER INFORMATION
Financial Information
Our annual audited consolidated financial statements as of December 31, 2012 and 2011 and for the years ended December 31, 2012 and 2011, together with the related auditor’s report and notes thereto (the “Financial Statements”), as well as the other financial information included in this offering circular related to these financial statements, have been prepared in accordance with IFRS, as issued from time to time by the International Accounting Standards Board (“IASB”). The Financial Statements are prepared on a consolidated basis, and as such, include our subsidiary guarantors and non-guarantor subsidiaries. The Financial Statements and other financial information included in this offering circular, unless otherwise specified, are stated in Mexican Pesos and include the consolidated results of all of our subsidiaries, including our non-guarantor subsidiaries, such as BAF. For unaudited selected consolidated financial information as of March 31, 2013 and for the three month periods ended March 31, 2013 and 2012 and a discussion of our financial results for the three month periods ended March 31, 2013 and 2012, see Annex A to this offering circular beginning on page A-1. Results of operations for the interim periods are not necessarily indicative of the results that might be expected for any other interim period or for an entire year.
Until 2011, we issued our consolidated financial statements in conformity with Mexican Financial Reporting Standards (MFRS). In accordance with IFRS 1 “First-time adoption of IFRS” we considered January 1, 2011 as our IFRS transition date and January 1, 2012 as our IFRS adoption date. The amounts included in the Financial Statements for the year ended December 31, 2011 have been reconciled in order to be presented under the same standard and criteria applied for the year ended December 31, 2012. An explanation of how the transition from MFRS to IFRS has affected our financial position and result of operations is provided in Note 26 of the Financial Statements.
The financial statements of Famsa USA, which are prepared in accordance with U.S. GAAP, and the financial statements of BAF, which are prepared in accordance with accounting standards and practices established by the CNBV, are both conformed to IFRS in the Financial Statements for consolidation purposes.
In making an investment decision, you must rely upon your own examination of the company, the terms of the offering and the financial information included herein. We urge you to consult your own advisors regarding the differences between IFRS and U.S. GAAP and how these differences might affect the financial information included in this offering circular.
Exchange Rate Information
Unless stated otherwise, references herein to “Pesos” or “Ps.” are to Mexican Pesos, the legal currency of Mexico; references to “U.S. Dollar,” “U.S.$” or “$” are to U.S. Dollars, the legal currency of the U.S.
This offering circular contains translations of certain Peso amounts into U.S. Dollars at specified rates solely for the convenience of the reader. These translations should not be construed as representations that the Peso amounts actually represent such U.S. Dollar amounts or could be converted into U.S. Dollars at the rate indicated as of the dates mentioned herein or at any other rate. Unless otherwise indicated, U.S. Dollar amounts in this offering circular have been converted from Pesos at an exchange rate of Ps.12.9658 to U.S.$1.00 published by Mexico’s Central Bank (“Banco de México”) in the Diario Oficial de la Federación (the “Official Gazette of Mexico”) to be effective on December 31, 2012 for the payment of all obligations denominated in currency other than Pesos and payable within Mexico on such date. On May 13, 2013 the exchange rate for Pesos published by Banco de México in the Official Gazette of Mexico was Ps. 12.14 to U.S.$1.00. See “Exchange Rates” for information regarding the rates of exchange between the Peso and the U.S. Dollar for the periods specified therein.
References herein to “UDIs” are to Unidades de Inversión, a unit of account in Pesos, the value of which is indexed to inflation on a daily basis, as measured by the change in the Mexican National Consumer Price Index (Índice Nacional de Precios al Consumidor, or “NCPI”). Under a UDI-based loan, the borrower’s nominal Peso principal balance is valued at the UDI stated value at the balance sheet date. Differences in valuation are recognized as interest expense within the net comprehensive financing result. At December 31, 2012, one UDI was equal to Ps.4.874624. Banco de México publishes the value of the UDI for every business day. Unless otherwise stated, all information herein pertaining to UDIs refers to its unit of account value as of December 31, 2012.
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Non-GAAP Financial Measures
A body of generally accepted accounting principles is commonly referred to as “GAAP.” A non-GAAP financial measure is generally defined as one that purports to measure historical or future financial performance, financial position or cash flows but excludes or includes amounts that would not be so adjusted in the most comparable GAAP measure. We present “Adjusted EBITDA” in this offering circular, which is a non-GAAP financial measure. Adjusted EBITDA consists of adding to the operating profit; interest expense on bank deposits, depreciation and amortization. Adjusted EBITDA as used in this offering circular differs from “Adjusted EBITDA” as used in the Financial Statements and from “Consolidated EBITDA”, which is used to determine our compliance with certain covenants contained in the Indenture governing the notes. See “Description of the Notes—Certain Definitions—Consolidated EBITDA.” In managing our business we rely on Adjusted EBITDA as a means of assessing our operating performance. We believe that Adjusted EBITDA enhances the understanding of our financial performance and our ability to satisfy principal and interest obligations with respect to our indebtedness as well as to fund capital expenditures and working capital requirements. We also believe Adjusted EBITDA is a useful basis of comparing our results with those of other companies because it presents results of operations on a basis unaffected by capital structure and taxes. Adjusted EBITDA, however, is not a measure of financial performance under IFRS and should not be considered as an alternative to net income or operating profit as a measure of operating performance or to cash flows from operating activities as a measure of liquidity. Adjusted EBITDA has material limitations that impair its value as a measure of our overall profitability, as it does not address certain ongoing costs of our business that could significantly affect profitability such as financial expenses, income taxes, depreciation, amortization and the impact of derivative instruments (except when designated as hedge accounting in accordance with IFRS). Our calculation of Adjusted EBITDA may not be comparable to other companies’ calculation of similarly titled measures. For a reconciliation of Adjusted EBITDA to operating profit under IFRS for the years ended December 31, 2011 and 2012, see “Summary—Summary Financial Data and Other Information.
Industry and Market Data
Market data and other statistical information used throughout this offering circular are based on independent industry publications, government publications, other public independent sources and our internal surveys and analyses. Such information has been accurately reproduced and, to the extent we are aware and able to ascertain from information published by such third parties, no facts have been omitted which would render the reproduced information inaccurate or misleading. However, although we believe these sources are reliable, we have not independently verified the information and cannot guarantee its accuracy or completeness. In addition, these sources may use different definitions of the relevant markets than those we present. Data regarding our industry are intended to provide general guidance but are inherently imprecise. Some data are also based on our estimates, which are derived from our review of internal surveys and analyses as well as the independent sources. Though we believe these estimates were reasonably derived, you should not place undue reliance on them as estimates are inherently uncertain.
Other Information Presented
References to spreads refer to percentage amounts representing the difference between two interest rates or transaction values, as the context requires.
In this offering circular, where information is presented in thousands, millions or billions of Pesos or thousands, millions or billions of U.S. Dollars, amounts of less than one thousand, one million, or one billion, as the case may be, have been truncated unless otherwise specified. All percentages and other numerals have been rounded to the nearest percent, one-tenth of one percent, one-hundredth of one percent, one-tenth or one hundredth as the case may be.
Certain figures included in this offering circular have been rounded for ease of presentation. Percentage figures included in this offering circular have not in all cases been calculated on the basis of such rounded figures but on the basis of such amounts prior to rounding. For this reason, certain percentage amounts in this offering circular may vary from those obtained by performing the same calculations using the figures in our financial statements included elsewhere in this offering circular. Certain other amounts that appear in this offering circular may not sum due to rounding.
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Unless otherwise specified, all units of area shown in this offering circular are expressed in terms of square meters.
Intellectual Property
This offering circular includes some of our trademarks and trade names, including our logos and product names. Each trademark and trade name of any other company appearing in this offering circular belongs to its respective owner.
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TERMS USED IN THIS OFFERING CIRCULAR
In this offering circular, unless the context otherwise requires, references to “Famsa” or the “Issuer” refer to Grupo Famsa, S.A.B. de C.V., and references to the “Company,” “we,” “our,” “us,” and “Grupo Famsa” refer to Famsa, our consolidated subsidiaries.
In addition, this offering circular contains terms relating to operating performance that are commonly used within the retail industry and the consumer finance industry. Certain of these terms are defined as follows:
“Active credit sales accounts” refers to credit sales accounts with our customers that have an outstanding balance.
“Adjusted EBITDA” has the respective and different meanings set forth in this offering circular and in the Financial Statements.
“Banco Ahorro Famsa” and “BAF” mean our commercial banking subsidiary, Banco Ahorro Famsa, S.A., Institución de Banca Múltiple.
“BMV” means the Bolsa Mexicana de Valores, S.A.B. de C. V., the Mexican Stock Exchange.
“Buen Fin” refers to the third weekend of November in Mexico, where lower prices are offered in many retail stores throughout the country.
“CAGR” means “compound annual growth rate,” which is the average year-over-year growth rate applied to different metrics of our activities over a multiple-year period.
“Cash sales” refers to sales in which full payment for merchandise is received up front.
“CINIF” means Consejo Mexicano para la Investigación y Desarrollo de Normas de Información Financiera, A.C., the Mexican Board for Research and Development of Financial Reporting Standards.
“CNBV” means the Comisión Nacional Bancaria y de Valores, the Mexican National Banking and Securities Commission.
“CONDUSEF” means Comisión Nacional para la Protección y Defensa de los Usuarios de Servicios Financieros, the National Commision for the Protection and Defense of Users of Financial Services.
“Credit sales” refers to sales carried out under our credit sales program.
“Credit sales program” refers to a financing option that we offer to our customers, implemented directly in our retail stores or through a credit granted by BAF, whereby payment for our products may be made in installments. Payments are required to be made on a weekly, bi-weekly or monthly basis for a period ranging from three to 24 months.
“Euro” or “€” means the lawful currency of the European Union;
“Famsa Mexico” refers to our retail and consumer financing operations in Mexico, operated and managed through our Mexican subsidiaries, or to our Mexican subsidiaries, as the context requires.
“Famsa USA” refers to our retail and consumer financing operations in the U.S., operated and managed through Famsa, Inc., or to Famsa, Inc., as the context requires.
“Financial Statements” refers to our annual audited consolidated financial statements as of December 31, 2012 and 2011 and for the years ended December 31, 2012 and 2011, together with the related auditor’s report and notes thereto.
“MFRS” or “NIF” refers to the Mexican Financial Reporting Standards (Normas de Información Financiera) issued by the CINIF, as amended.
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“NAFIN” means Nacional Financiera, S.N.C.
“IASB” refers to International Accounting Standards Board.
“IFRS” or “NIIF” refers to the International Financial Reporting Standard (Normas Internacionales de Información Financiera) issued by the IASB.
“Same-store sales” refers to the total sales of retail stores that have been in operation for a year or more.
“SHCP” means the Secretaria de Hacienda y Crédito Público in Mexico, the Mexican Ministry of Finance and Public Credit.
“Square meter” is the standard measure of area used in Mexico. One square meter is equal to approximately 10.764 square feet.
“STORISTM” means “Strategic Retail Information System,” the supply chain management software system that we use. STORISTM is a trademark of Storis, Inc.
“TIIE” refers to the 28-day Mexican interbank rate (Tasa de Interés Interbancaria de Equilibrio), which was 4.8450% as of December 31, 2012.
“Total store area” means the aggregate surface area of all of our operating retail stores in Mexico and the United States.
“UDIs” means Unidades de Inversión, a unit of account in Pesos, the value of which is indexed to inflation on a daily basis, as measured by the change in the NCPI.
“U.S. GAAP” means Generally Accepted Accounting Principles in the United States of America.
“Verochi” means Verochi S.A. de C.V.
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SUMMARY
This summary highlights selected information from this offering circular and is qualified in its entirety by, and is subject to, the more detailed information and Financial Statements appearing elsewhere in this offering circular. You should read this entire offering circular carefully, including the risk factors, Financial Statements and Annex A contained herein, before making an investment decision.
Overview
We are a leading company in the Mexican retail sector, satisfying families’ different purchasing, financing and savings needs. Our target market is the middle and low-middle income segments of Mexico’s population and the U.S. Hispanic population in certain U.S. states where we operate.
Our Mexican retail operation offers furniture, electronics, household appliances, cellular telephones, computers, motorcycles, clothing and other durable consumer products, which are sold mainly through our Famsa stores. In the states of Texas and Illinois in the U.S., we offer furniture and appliances through our subsidiary Famsa, Inc. As of December 31, 2012, we owned and operated 380 stores and 11 distribution centers, including 355 stores in 82 cities throughout Mexico and 25 stores in Texas and Illinois. As of December 31, 2012, in Mexico we also operated 286 banking branches within Famsa stores and 18 independent banking branches. We believe that over the course of our 42-year history, we have built a strong brand name associated with a broad product offering at low prices and personalized customer service with convenient consumer financing programs. As of December 31, 2012, furniture, electronics and household appliances accounted for 38.8% of our consolidated total revenues.
In connection with our retail operations, we offer consumer financing to our customers who opt to purchase our products and services on credit, many of whom do not typically have access to other forms of financing, which provides them with an alternative method to purchase our products and services. In 2012, 81.2% of our retail sales were through our credit sales programs. To enhance our consumer financing business in Mexico, in 2007, we established our own commercial bank, BAF, allowing us to offer additional banking services to our customers, and generate a lower-cost, more stable form of short-term financing for our operations. According to the CNBV, as of December 31, 2012, BAF operated one of the ten largest banking branch networks in Mexico, with 286 banking branches within Famsa Mexico stores and 18 independent banking branches, and managed an aggregate amount of 2.9 million saving and credit accounts.
Our total revenues were Ps.13,866 million for the year ended December 31, 2011 and Ps.14,124 million for the year ended December 31, 2012. Our U.S. operations represented 12.1% of total revenues during 2012 with 13.2% of the total retail space. Our Adjusted EBITDA totaled Ps.1,955 million for the year ended December 31, 2011 and Ps.2,379 million for the year ended December 31, 2012. The following table shows certain of our financial and operating data for the years ended December 31, 2011 and 2012 in accordance to IFRS.
Dec 31, 2011 Dec 31, 2012 Dec 31, 2012 (USD) Number of stores 401 380 — Total sales area(1) 539,918 487,923 — Total revenues(2) Ps. 13,866 Ps. 14,124 1,089 Same-store sales 1.3% 1.6% — Sales on credit, as a percentage of our total revenues 79.6% 81.2% — Famsa USA sales, as a percentage of total revenues 12.6% 12.1% — Adjusted EBITDA(2)(3) Ps. 1,955 Ps. 2,379 183 Adjusted EBITDA margin (%)(4) 14.1% 16.8% —
______(1) In square meters.
(2) In millions of Pesos or U.S. Dollars, except as otherwise indicated.
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(3) Adjusted EBITDA is a non GAAP financial measure computed under IFRS. Adjusted EBITDA as such term is used in this offering circular consists of adding to the operating profit; interest expense on bank deposits, depreciation and amortization.. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—EBITDA and Adjusted EBITDA Reconciliation.”
(4) Adjusted EBITDA margin is calculated as Adjusted EBITDA divided by total revenues.
Famsa Mexico and Famsa USA manage our retail operations through our network of stand-alone stores and anchor stores. In addition to the products and services provided by stand-alone stores, anchor stores serve as administrative centers, providing customer service, credit processing, and other support to the stand-alone stores in the same region.
87.9% of Grupo Famsa’s consolidated total revenues for the year ended December 31, 2012 were generated in Mexico. Over the last decade, Mexican consumers have increased their overall demand for goods and services as a result of greater purchasing-power, economic stability and income growth. Our target market in Mexico is primarily the middle and low-middle income segments of the population. We consider these segments to comprise the adult working population that earns a household monthly income of between Ps.3,420 (U.S.$264) and Ps.44,200 (U.S.$3,409). Based on AMAI’s Mexican Housing Overview of 2012, this group represents approximately 74% of the Mexican households living in cities with a population greater than 50,000 inhabitants. For further discussion of our target demographics, see “Our Business—Target Markets.” Famsa Mexico has targeted this large segment of the population since 1970 by offering convenient installment credit plans, a broad assortment of products, and personalized customer service. Currently, Famsa Mexico serves its customers through 355 stores (298 stand-alone and 57 anchor) that are generally located within the metropolitan areas of cities with a population in excess of 50,000, and range in size from 400 to 3,000 square meters, with an average of 1,193 square meters per store. On average, each store maintains approximately 2,205 durable consumer products on display, ranging from furniture, electronics and household appliances to clothing and cellular telephones. In addition, we believe that we are also one of Mexico’s largest wholesalers of household appliances and electronic products, operating 17 wholesale stores in the principal metropolitan areas of 17 states.
Famsa USA represented 12.1% of Grupo Famsa’s consolidated total revenues with 13.2% of the total retail space, for the year ended December 31, 2012. Hispanics make up the largest and fastest-growing minority segment in the United States. According to U.S. Census Bureau estimates, in 2010 the Hispanic population reached 50.5 million in the United States and, between 2000 and 2010, grew by 43%, which was four times the growth of the total U.S. population. We operate in Texas and Illinois, where approximately 23% of the U.S. Hispanic population resides. Famsa USA has targeted the U.S. Hispanic market by replicating Famsa Mexico’s business model and leveraging the recognition of the “Famsa” brand. Famsa USA’s stores carry an average of 1,822 products on display, and range in size from 1,400 to 3,000 square meters with an average of 2,322 square meters. Our main product categories in the United States are furniture, electronics and household appliances. In addition, we offer differentiated services, such as Famsa-to-Famsa, through which our customers can purchase merchandise at Famsa stores in the U.S. and have it delivered to others in Mexico through Famsa Mexico, taking advantage of our infrastructure on both sides of the U.S.-Mexico border.
We sell brand-name and third-party domestic and imported products. The principal brands available in our stores include Sony, White Westinghouse, Panasonic, Whirlpool, LG, Samsung and Mabe, among others, and we continually seek to expand our product and service offerings. Furthermore, Kurazai, our own motorcycle brand, has been ranked as one of Mexico’s four best-selling motorcycle brands, after only three years in the market. Our stores are characterized by their display method, which is designed to maximize sales and use of space. Most of our stores have their own warehouse area to ensure that their most popular products are readily available. Each of our stores is outfitted with integrated inventory management and marketing systems and connected to STORIS®, which is an advanced supply chain management application that provides real-time information on inventory levels, purchase order status and other information to both stores and vendors.
Given our product mix of high-ticket items and our focus on middle and low-middle income individuals, Famsa’s comprehensive value offer has always included the availability of flexible credit sales programs, which enhance our customers’ purchasing power by providing a convenient source of financing for purchasing the retail products we offer. The credit sales programs we offer involve weekly, bi-weekly or monthly payments throughout terms that can range from three to 24 months, depending on the customer’s preference and payment capacity. In
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2012, credit sales accounted for 81.2% of our total sales. We believe that our credit sales programs improve our retail operation’s profitability and boost our growth prospects.
The retail price of the merchandise sold in Mexico depends on the market trends of the diverse type of products offered. In addition, our installment program considers various factors, such as the repayment period, the customer’s credit history and the type of product. Sales on credit generally generate higher gross margins than those yielded by our cash sales. In the United States, the purchase price of the merchandise sold on credit is determined based upon a suggested retail price plus a finance charge that is reviewed periodically. Generally, cash purchases in the United States are not subject to discounts.
All customers who wish to enter into a credit sales program go through our credit approval process, which has been honed throughout our over 42 years of experience in consumer financing. This process includes a proprietary credit application, credit bureau analysis, telephone confirmation and, in some cases, physical address verification. Additionally, our credit approval process involves the determination of the customer’s payment capacity based upon various factors such as monthly income, prior outstanding credit commitments and credit history. The payment capacity figure is one of the most important outputs of the entire credit approval process. This amount represents the maximum aggregate amount and number of installments a customer can commit to at any given time. For instance, if a customer has a payment capacity of Ps.1,000 he or she can purchase any amount of products whose aggregate installments at any time are equal to or less than Ps.1,000. Customers of our personal loans undergo the same credit approval process as those purchasing retail goods, though personal loans are mostly granted to existing credit sales customers with proven payment capacity. During the past three years, we have centralized the credit approval process from 78 different offices to three supervised and controlled offices to ensure that credit policies are carried out properly and to obtain feedback from our internal audit area. Currently, all credit applications are evaluated by an antifraud division that detects suspicious customer profiles based on established policies, and by an analytics division, that centralizes information necessary to update the Management Information System, and performs analyses, models and forecasts.
With the establishment of our banking operations, through BAF, we have increased our product and service offering to our customers. BAF leverages Famsa’s expertise to serve our customer base and our target market, which has limited access to banking services. We believe this represents an opportunity for growth given that approximately 60% of our customer base has never used banking services before. We have incorporated our banking operations within our retail stores, and as of December 31, 2012, we had 286 banking branches within Famsa stores and 18 independent banking branches, becoming one of the ten largest bank networks in the country according to the CNBV. Our expansion into the banking sector through BAF has allowed us to create additional consumer finance products, which diversify our product offering and thereby partially hedge our exposure to the sensitivity of durable goods demand caused by the economic downturn during past years. In addition to our credit sales programs, we offer BAF customers several savings and checking accounts and other investment products, as well as personal and business loan products. Personal loans are unsecured cash loans used to meet needs not offered in our stores. As of December 31, 2012, interest earned on personal loans offered by BAF represented 25.0% of Famsa Mexico’s total revenues. Business loan products comprise commercial loans issued by BAF to micro, small and medium enterprises, as well as to other financial institutions. During the year ended December 31, 2012, the commercial loans portfolio in Mexico increased 28.3% compared to the year ended December 31, 2011. The integration of BAF branches into our retail stores also provides us an enhanced opportunity to cross-sell our retail products and banking products and services in our BAF branches and our retail stores, respectively.
Through these banking branches, we have been able to obtain deposits by offering several savings and checking accounts and other investment products to our customers. Bank deposits, distributed across more than 1.1 million accounts, have grown consistently since 2007, and continue growing at a double-digit pace per year, from the year ended December 31, 2007 to the year ended December 31, 2012. For the year ended December 31, 2012, BAF’s deposit base grew 15.0% year-over-year, reaching Ps.11,999 million. Furthermore, BAF supports the sale of merchandise in Famsa Mexico’s stores. BAF had a capitalization ratio of 13.0% as of December 31, 2012, which results from dividing net equity by the assets at risk (including credit, market and operational risk). As a result of the stability of its operations, BAF has a capitalization ratio well in excess of any statutory requirements. The capitalization rules for financial institutions establish requirements for specific levels of net equity, as a percentage of assets subject to both market and credit risk. The capitalization index required for BAF is a minimum of 8%.
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In addition, customers’ deposits have provided us with a stable and less expensive source of funding for our Mexican retail operation, further enhancing consumer financing profitability. The average interest rate of BAF´s deposit base has fallen from 8.1% as of December 31, 2009 to 5.2% as of December 31, 2012.
Our Corporate Structure
We conduct our business operations through 17 direct operating subsidiaries. The following chart shows our organizational structure and our subsidiaries, all of which are substantially wholly owned, directly or indirectly by us (we hold a 53.75% interest in Geografía Patrimonial, S.A. de C.V.):
The subsidiary guarantors of the notes being offered hereby are: Fabricantes Muebleros S.A. de C.V., Famsa del Centro S.A. de C.V., Famsa del Pacífico S.A. de C.V., Famsa Metropolitano S.A. de C.V., Impulsora Promobien S.A. de C.V., Famsa, Inc., Famsa Financial Inc., Auto Gran Crédito Famsa S.A. de C.V., Expormuebles S.A. de C.V., Mayoramsa S.A. de C.V., Verochi S.A. de C.V., Geografía Patrimonial S.A. de C.V. and Famsa México S.A. de C.V. The subsidiary guarantors are our wholly-owned subsidiaries.
Our Business Strengths
We believe our business has the following strengths:
Strong Market Position and Growth Platform in the Mexican Retail Industry
Our extensive network of stores and distribution centers covering most of the major metropolitan areas in Mexico provides what we believe to be an extensive distribution channel to launch new products and services to our target market. Moreover, our established retail store and distribution infrastructure, in particular the location and
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geographic coverage of our stores and distribution centers, allows us to efficiently continue our expansion plans and gives us a significant advantage over existing and new competitors.
We offer a broad assortment of well-recognized brands, low prices, personalized customer service and convenient credit sales programs, which we believe have strengthened our customer loyalty. We believe the Famsa name has strong brand recognition, particularly in the middle and low-middle income segments, which we continually reinforce through an aggressive multi-media advertising program with national scope in Mexico. Our sales systems and marketing efforts are further supported through initiatives such as our “Gran Crédito” direct marketing program, whereby our credit representatives visit the homes of potential customers in an effort to set up new accounts both in areas where we currently operate stores and in advance of new store openings. Other initiatives we carry out to reinforce our position include telemarketing, direct mail, cashier pitches and our “Cambaceo” door-to-door sales program. In addition, we believe that our strong market position in the retail industry in Mexico has enhanced our ability to negotiate better prices with our suppliers.
The following map shows the geographical distribution of our stores in Mexico as of December 31, 2012.
Famsa Mexico Retail Locations
Proven Track Record in Consumer Financing
We have 42 years of experience providing consumer financing, with an emphasis on offering flexible credit sales programs to our retail customers while maintaining prudent risk management and credit evaluation policies and procedures. See “Our Business—Consumer Lending Operations.”
Our target markets’ financing needs have typically been underserved by the traditional financial sector. Since 1970, we have been developing the necessary skill set and infrastructure to capitalize on the growing credit needs of this large segment of the population. As of December 31, 2012, we managed a total of 1.9 million active credit accounts with a team of over 2,858 credit-related personnel, including approximately 247 call-center agents, all of whom are dedicated to making credit accessible to our customers while ensuring the quality of our loan portfolio. We also provide convenient options for our customers to manage their credit account payments, including
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our “Promobien” program, which offers customers the option to make payments on their Famsa credit accounts through an automatic payroll deduction with participating employers. As of December 31, 2012, we maintained a relatively low uncollectibility level of approximately 7.3%, measured as the percentage of recoveries over total accounts receivable. Combined with our in-depth knowledge of the retail industry, we believe that our extensive experience with risk management and consumer financing represents a competitive advantage that we have and that we will continue to enhance through BAF.
Funding through Banco Ahorro Famsa
In the past, we funded our credit sales program through multiple credit lines with major financial institutions and international and Mexican securities markets. However, with the establishment of BAF and the growth of its deposit base, we now have access to a more stable and less expensive source of short-term funding to support our credit sales portfolio and other growth initiatives. As of December 31, 2012, BAF was the source of 72.2% of our net funding and BAF’s average cost of funding was 5.2%. Initially funded in part through financial intermediaries and interbank loans, BAF is now almost fully-funded through its own deposits in the form of savings and checking accounts, certificates of deposit and other consumer investment products. The combination of our diversified funding platform with our risk management experience and knowledge of the retail industry represents a key competitive advantage.
Integrated Consumer-Targeted Banking Services
Through the development of BAF we are able to offer our customers targeted banking products and services that are normally not available to a large portion of the customer base. Based on our estimates, approximately 60% of Famsa Mexico’s customers have never used banking services. As a result of the credit evaluation and monitoring to which our retail credit sales account customers are already subject to and the associated records that we keep, we believe that we are in a better position than other banking services providers to offer our retail customers first-time banking services and develop products tailored to their needs. The integration of BAF with our retail operations provides a variety of cost-saving synergies, including joint product marketing through mailings, telemarketing, cashier sales pitches, television and other marketing campaigns, advertising on bank statements and cross selling in general. In addition, BAF provides a reliable and affordable source of funding via more than 1.1 million accounts with an average cost of funding of 5.2% as of the year ended December 31, 2012. BAF now manages over 2,226 point-of-sale terminals in our stores, which accept Famsa and third-party credit and debit cards, along with our 175 in-store ATMs. BAF also handles online payroll services for five Famsa companies and 10 third-party companies. Additionally, the integration of our BAF branches into our retail stores increases our customers’ familiarity with our stores and personnel and allows us to provide longer hours of operation than other banking services providers.
Product Diversification and Cross-Sales
Our expansion into the banking sector through BAF has allowed us to create additional consumer finance products, which diversify our product offering and thereby partially hedge our exposure to the sensitivity of durable goods demand caused by the economic downturn during past years. In addition to our credit sales programs, we offer BAF customers several savings and checking accounts and other investment products, as well as personal (unsecured cash loans used to meet our customer’s personal needs) and business loan products. As of December 31, 2012, interest earned on personal loans offered by BAF represented 25.0% of Famsa Mexico’s total revenues. Business loan products comprise commercial loans issued by BAF to micro, small and medium enterprises, as well as to other financial institutions. As of December 31, 2012, the commercial loans portfolio in Mexico increased 28.3% compared to the same period in 2011. The integration of BAF branches into our retail stores also provides us an enhanced opportunity to cross-sell our retail products and banking products and services in our BAF branches and our retail stores, respectively.
Personalized Quality Customer Service and Point-of-Sale Marketing
We are dedicated to providing the highest-quality customer service. We believe our desire to serve our customers is evidenced by our ability to continually exceed their expectations for offering high-quality products at competitive prices. We actively manage client relationships through:
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a well-trained, motivated sales force focused on delivering quality personalized service;
customer service centers in each of our anchor stores;
a call center to provide customer service;
our “Gran Crédito” and “Cambaceo” (or “canvassing”) programs; and
a wide range of post-sale services, including repair services and home delivery.
Customer satisfaction is measured through surveys conducted by an external provider and may be either in- store or by telephone. In-store surveys are conducted near the exit at five of our stores during high seasons (December, Mother's Day, Buen Fin), and include questions regarding service, wait times and products, among other topics. Telephone surveys are conducted on a monthly basis to approximately 2,800 customers with the objective of obtaining information regarding customer preferences.
We believe our commitment to customer service is a significant factor in increasing our customer loyalty and expanding our customer base. Additionally, our dedication to high-quality, personalized customer service has been critical to the sale of complementary products such as extended warranties and the introduction of new products, including life and car insurance (which we sell for a commission) and personal loans.
Advanced Information Technology and Systems
We operate STORIS®, a modern supply chain management software system that, among other functions, provides us with key real-time information regarding retail sales, inventory levels, product availability and purchase order status, enhancing our decision-making process. Our technology improves the efficiency of our supply chain by allowing us to manage detailed information in such a way as to increase the likelihood that our customers will find exactly the products they wish to purchase while optimizing the associated inventory levels. Moreover, we are able to track the interests, needs and buying habits of our customers, anticipating changes in consumer demand.
Customer service has benefited from our technology by having:
readily available access to important product information such as technical product descriptions and product availability;
the ability to identify and prevent potential service problems (e.g., incorrect or inaccurate product information) in connection with matters such as inventory availability and returns; and
a reliable source for registering and handling customer complaints.
In addition, during the past few years we have complemented our information technology infrastructure with SAP and Calypso, a sales processing system developed by Unisys, to manage our human resources, accounting and soft good retail operations. We use advanced operational information technology to support BAF’s operations, including ICBS-FISERV, Metacard (credit card processing FISERV module) and eBanking. In addition to providing a more sophisticated consumer financing management platform, our bank’s systems enable us to identify cross-selling opportunities across credit and deposit customer databases by integrating virtually all of Famsa Mexico’s existing credit accounts with BAF’s growing deposit base.
Strong Management Team and Motivated Employees Focused on Continuous Improvement
Our executive officer team has over 25 years of accumulated specialty retail experience and a solid track record of sustainable growth. Additionally, top management has successfully fostered a work culture based on teamwork and focused on continuous improvement and commercial innovation. Each of our employees has individual objectives, which serve as a basis for measuring performance and are associated with broader corporate goals. Having met operational and financial objectives, our employees are eligible for bonuses according to our compensation system. We believe our goal-oriented culture and incentive programs have contributed to the development of a motivated and well-aligned team that is dedicated to serving our customers’ needs and ensuring
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the sustainability of our business. Our positive performance rests on practices of sound corporate governance. Famsa was one of the few finalists in the second edition of the “Affinitas” Awards for Good Corporate Governance in Latin America, held on November 22, 2007 as part of the 9th Latibex Forum in Madrid, Spain. More than 580 companies were evaluated by the jury and 12 finalists were chosen on the basis of such criteria as shareholders’ rights, equality, stakeholder involvement, communication and transparency and responsibilities of the board of directors.
Solid position and strong brand recognition in Texas and Illinois
Famsa is well positioned as a regional retailer in home furnishings, focusing on the Hispanic market in the U.S. We began operating in Texas in 2002, and currently we have 25 stores across Texas and Illinois along with two distribution centers. Hispanics make up the largest and fastest-growing minority segment in the United States. The Hispanic population accounted for more than half of the nation’s growth in the past decade. We believe that our brand recognition is unmatched by any other Hispanic-oriented retailer. Famsa USA has targeted the U.S. Hispanic market by replicating Famsa Mexico’s business model. We have implemented a series of operational initiatives, such as expanding the selection of our product line, launching attractive advertising campaigns and promotions, and improving our exhibition spaces. We also offer differentiated services, like in-house credit, price match guarantees, next-day delivery and Famsa-to-Famsa, through which our customers can purchase merchandise at Famsa stores in the U.S. and have it delivered to others in Mexico through Famsa Mexico, taking advantage of our infrastructure on both sides of the U.S.-Mexico border.
Our Business Strategy
Grupo Famsa serves specific consumer, credit and savings needs of the middle and low-middle income segments of the population through what we believe is a unique portfolio of complementary businesses. We believe the synergies among our three business units, Famsa Mexico, Banco Ahorro Famsa, and Famsa USA, enable us to attain competitive advantages that reinforce our position. Our business strategy focuses on maximizing these synergies to provide a comprehensive and differentiated value offer to our customers who value personalized service and require credit options that are not offered to them by the traditional banking sector.
Famsa USA serves the Hispanic segment, successfully replicating Famsa Mexico’s business model in the states of Texas and Illinois. Our objective is to increase our customer base by attracting new customers and maintaining existing ones through the communication of our strengths, such as in-house credit, name brands, competitive prices, unique promotions and exclusive Famsa-to-Famsa service.
The key elements of our strategy are the following:
Enhance Our Consumer Financing Operations in Mexico through Banco Ahorro Famsa
We continue enhancing our consumer financing operations in Mexico through the development of BAF. We believe that further development of BAF will lead to an additional decrease in our cost of financing, allowing us to apply greater financial resources to other areas of our operations. We believe the inclusion of BAF branches in our retail stores and the recent expansion plan of Grupo Famsa, which encompasses the opening of independent banking branches, will enable us to increase our customer base in Mexico and enhances our ability to sell additional products to our consumers. Besides acting as a catalyst for further growth in our retail operations, we believe BAF will increasingly become a source of independent growth through expansion of existing and development of new financial products and services. Furthermore, we believe BAF’s personal and business loan programs and other financial products will help us further diversify our product offerings to hedge our exposure to durable goods demand sensitivity. We intend to continue building upon our experience and knowledge of providing consumer financing to further successfully establish, expand and operate BAF.
BAF is a significant multiple-service banking institution in Mexico, increasing the services provided in Famsa Mexico’s stores. In 2012, we achieved record number of savings deposits, expanded our customer base, reduced our average cost of funding, and opened 17 banking branches, including 12 independent banking branches.
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Selectively Expand Our Store Network in Mexico
We believe our current retail store network provides an important platform for our selective expansion in Mexico. Our expansion strategy includes opening new stores in areas better served by full-format stores to selectively replace smaller stores, opening additional stores in strategic, high-demand areas of cities in which we already operate and opening new stores in regions which we believe offer a substantial growth opportunity given the existing number of cities with populations exceeding 50,000 inhabitants that are currently underserved by us or our competitors. Based on our estimates, there are approximately 395 cities in Mexico with populations exceeding 50,000 inhabitants, and we currently operate in 82 (or 21%) of them. Furthermore, our expansion strategy also encompasses the opening of independent banking branches, which require a lower level of investment due to their smaller retail space, on average of 150 square feet. These independent banking branches offer BAF’s current portfolio of financial products and services, in addition to door-to-door credit origination (“Gran Crédito”), door-to- door sales program (“Cambaceo”) and durable goods sales through electronic catalogs maintained within the independent banking branches.
Improve Our Sales and Marketing Efforts to Increase Our Market Share
We plan to continue improving our sales force productivity through more effective training programs and attractive compensation systems and enhance our marketing efforts to attract new customers and increase our market share. We also plan to improve our information technology systems, databases and customer relationship management system in order to enhance our ability to anticipate consumer demand and promote commercial innovation. While our marketing strategy emphasizes mass media advertising, we also intend to further expand our telemarketing program and explore other new direct marketing channels. In addition, we will continue our commitment to customer service and customer satisfaction by providing a combination of personalized service, high-quality products and services at competitive prices and flexible consumer financing.
Our marketing program includes different channels, among them: digital marketing (social media, e- marketing and famsa.com website); customer service (FAQ 1-800 number); direct marketing (telemarketing, SMS, e-mailing and interactive voice response telephone marketing); marketing intelligence (research, benchmarking and price monitoring); customer relationship management (loyalty program, cross marketing channels, customer data warehouse, customer segmentation, and marketing campaigns management); and finally, marketing communications (above-the line, below-the line, media, digital and production).
Continue to Improve Our Margins through the Introduction of New Products, Services and Distribution Channels
We plan to take advantage of the strong growth platform provided by our extensive retail store network to continue developing new products, services and distribution channels that satisfy our customers’ needs, such as Internet sales, new consumer financing products, footwear catalog sales, and motorcycle and automobile financing, in addition to other products and services primarily directed to customers in higher income brackets. Furthermore, we expect that through the continued development and integration of BAF, we will be able to offer a growing variety of personal and business financial products and services in Mexico. We believe that the continued development of new products, services and distribution channels will allow us to cross-sell a broader range of products and services more effectively, which should lead to improvements in our margins and increase our competitiveness, further strengthening our growth platform. Additionally, we expect that the continuing development and integration of BAF will provide a lower-cost source of financing and expand our products offering, which may lead to an increase in our profitability.
Our product and service diversification strategy includes the making of loans to support micro, small and medium-sized enterprises. This search for new ways to generate value has positioned BAF as an attractive alternative for customers seeking productive working capital loans, with this line of business growing more than 28% in 2012.
Our success with these loans reflects a series of initiatives we implemented during 2012, including the opening of 10 service centers in the Mexican cities of Monterrey, San Luis Potosi, Torreon and Saltillo to serve the micro, small and medium enterprises segment. At these service centers, our specialized personnel help customers from a wide range of industries, including the construction, financial services and commercial sectors.
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Improve Profitability of Famsa USA
Precipitated by the economic downturn beginning in 2008 that adversely affected Hispanic consumers in many of our markets in the United States, we posted operating losses in Famsa stores located in California, Nevada and Arizona and elected in 2012 to close our stores in those states. As a result, in 2012 we began a comprehensive review of Famsa USA’s operations in an effort to improve its profitability. We are consolidating our operations in the profitable regions of Texas and Illinois and have already implemented several initiatives, including increasing our product assortment, enhancing our personalized service, launching an attractive advertising campaign and reducing operating expenses. Our objective is to increase our customer base by attracting new customers and maintaining existing ones through the communication of our strengths, such as in-house credit, name brands, competitive prices, unique promotions and the exclusive Famsa-to-Famsa service. As of December 31, 2012, we had 22 stores in Texas and 3 stores in Illinois.
Concurrent Tender Offer and Consent Solicitation
We have launched a cash Tender Offer for any and all of our U.S.$200,000,000 aggregate principal amount of the Senior Notes due 2015 validly tendered and accepted by us on or before June 12, 2013 upon the terms and subject to the conditions set forth in an Offer to Purchase and Consent Solicitation Statement, dated May 15, 2013 (as it may be amended or supplemented from time to time, the “Statement”), and in the related Letter of Transmittal and Consent (as the same may be amended or supplemented from time to time, the “Letter of Transmittal” and collectively with the Statement, the “Offer Documents”). Concurrently with the Tender Offer, and on the terms and subject to the conditions set forth in the Statement, the Company will solicit consents of holders of the Senior Notes due 2015 that would, among other things, eliminate most of the restrictive covenants and certain of the events of default contained in the indenture governing the Senior Notes due 2015 and to shorten the minimum notice period to holders required for a redemption from thirty days to six business days prior to the redemption date (with an additional minimum notice of three business days to the Trustee). We intend to use the net proceeds from this offering (i) to pay the consideration for the Tender Offer and Consent Solicitation and accrued and unpaid interest on the Senior Notes due 2015, (ii) to redeem any Senior Notes due 2015 that are not purchased under the Tender Offer and Consent Solicitation in accordance with the terms of the indenture governing the Senior Notes due 2015, as amended following the Consent Solicitation, if applicable, (iii) to pay fees and expenses incurred in connection with the Tender Offer and Consent Solicitation, and (iv) to the extent any proceeds remain, for general corporate purposes. The Tender Offer and Consent Solicitation are not being made pursuant to this offering circular. The closing of the Tender Offer and Consent Solicitation is contingent upon the closing of this offering.
Our Corporate Information
Grupo Famsa, S.A.B. de C.V. is a sociedad anónima bursátil de capital variable, publicly traded variable capital corporation organized under the laws of the United Mexican States. Our principal executive offices are located at Av. Pino Suárez 1202 Norte, 3rd Floor, Unidad “A,” Zona Centro, Monterrey, Nuevo León, Mexico. Our telephone number at that address is +52 (81) 83-89-34-05/03. Our web site is located at www.grupofamsa.com. Information contained on, or accessible through, our web sites, is not incorporated by reference herein and shall not be considered part of this offering circular.
We were organized in Monterrey, Nuevo Leon, Mexico on December 27, 1979. Our registration number granted by the Mexican Ministry of Finance and Public Credit (Secretaria de Hacienda y Crédito Público) is GFA- 971015-267.
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The Offering
The following is a brief summary of some of the terms of this offering of the notes. For a more complete description of the terms of the notes, see “Description of Notes” in this offering circular.
Issuer ...... Grupo Famsa, S.A.B. de C.V.
Notes offered ...... U.S.$250,000,000 aggregate principal amount of 7.250% senior notes due 2020.
Issue Date ...... May 31, 2013.
Maturity ...... June 1, 2020.
Interest payment dates ...... June 1 and December 1 of each year, beginning on December 1, 2013.
Guarantors ...... Fabricantes Muebleros S.A. de C.V., Famsa del Centro S.A. de C.V., Famsa del Pacífico S.A. de C.V., Famsa Metropolitano S.A. de C.V., Impulsora Promobien S.A. de C.V., Famsa, Inc., Famsa Financial Inc., Auto Gran Crédito Famsa S.A. de C.V., Expormuebles S.A. de C.V., Mayoramsa S.A. de C.V., Verochi S.A. de C.V., Geografía Patrimonial S.A. de C.V. and Famsa México S.A. de C.V.
Guarantees ...... The payment of principal, interest and premium on the notes will be fully and unconditionally guaranteed on a senior unsecured basis by certain of our existing and future subsidiaries. See “Description of Notes—Note Guarantees.”
Ranking ...... The notes and guarantees will rank equally in right of payment with all of our and the subsidiary guarantors’ existing and future senior indebtedness; and senior in right of payment to all of our and the subsidiary guarantors’ existing and future subordinated indebtedness. The notes and the guarantees will effectively rank junior in right of payment to all of our and the subsidiary guarantors’ existing and future secured indebtedness with respect and up to the value of the assets securing such indebtedness. The notes and the guarantees will be structurally subordinated to all indebtedness (including trade payables) of our non-guarantor subsidiaries. Furthermore, the notes and the guarantees will rank junior in right of payment to all obligations preferred by statute (such as tax or labor obligations).
As of March 31, 2013, on a pro forma basis after giving effect to this offering and the application of proceeds as described under “Use of Proceeds”: Famsa and its subsidiaries would have had consolidated total indebtedness of Ps. 19,801 million (U.S.$1,602 million) (including Ps. 12,865 of bank deposits), none of which would have been secured; Famsa and the subsidiary guarantors would have had
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consolidated total indebtedness of Ps. 6,931 million (U.S.$561 million); and Our non-guarantor subsidiaries would have had consolidated total indebtedness of Ps.12,870 million (U.S.$1,041 million) (including Ps.12,865 million of bank deposits).
As of December 31, 2012, Famsa had net assets of Ps. 8,264 million (accounting for 38.11% of our consolidated net assets) and for the year ended December 31, 2012, Famsa had EBITDA of Ps. 1,222 (accounting for 26.35% of our consolidated EBITDA). As of December 31, 2012, the subsidiary guarantors had net assets of Ps. 2,785 million (accounting for 12.85% of our consolidated net assets) and for the year ended December 31, 2012, the subsidiary guarantors had EBITDA of Ps. 1,037 million (accounting for 22.37% of our consolidated EBITDA). None of the subsidiary guarantors individually account for more than 20% of consolidated EBITDA or consolidated net assets. As of December 31, 2012, our non-guarantor subsidiaries had net assets of Ps. 10,634 million (accounting for 49.04% of our consolidated net assets) and for the year ended December 31, 2012, our non-guarantor subsidiaries had EBITDA of Ps. 2,377 million (accounting for 51.28% of our consolidated EBITDA).
Optional redemption ...... On or after June 1, 2017, we may redeem some or all of the notes at any time at the redemption prices set forth in “Description of Notes—Optional Redemption”, plus accrued and unpaid interest to the date of redemption.
Prior to June 1, 2017, we may redeem the notes in whole or in part, by paying the principal amount of the notes, plus the applicable “make-whole” premium and accrued and unpaid interest. See “Description of Notes – Optional Redemption.”
Optional redemption upon equity offering ...... We may, at our option, at any time on or prior to June 1, 2016, use the net cash proceeds of certain equity offerings to redeem in the aggregate up to 35% of the aggregate principal amount of the notes, including any additional notes we may issue in the future under the Indenture, at a redemption price equal to 107.250% of the principal amount thereof, provided, that:
After giving effect to any such redemption at least 65% of the aggregate principal amount of the notes (including any additional notes) issued under the Indenture remains outstanding; and we make such redemption not more than 60 days after the consummation of such equity offering.
See “Description of Notes—Optional Redemption.”
Additional Amounts ...... All payments by us or the subsidiary guarantors in respect of
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the notes, whether of principal or interest, will be made without withholding or deduction for or on account of any taxes, duties, levies, imposts, assessments or other governmental charges imposed by Mexico or any other jurisdiction in which we or the Subsidiary Guarantors are organized or resident for tax purposes or within or through which payment of the notes or the Note Guarantees is made, unless required by law, in which case, subject to specified exceptions and limitations, we and the subsidiary guarantors will pay such additional amounts as may be required so that the net amount received by the holders of the notes in respect of principal, interest or other payments on the notes, after any such withholding or deduction, will not be less than the amount that would have been received in the absence of any such withholding or deduction. See “Description of Notes—Additional Amounts.”
Redemption for changes in withholding taxes ...... In the event that, as a result of certain changes in Mexican tax laws applicable to payments under the notes, we become obligated to pay additional amounts with respect to interest (or amounts deemed interest) payable under the notes, in excess of amounts attributable to a Mexican withholding tax rate of 4.9% on the notes, the notes will be redeemable, in whole but not in part, at our option, at any time upon notice, at 100.0% of the outstanding principal amount, plus accrued and unpaid interest to the date of redemption and any additional amounts that may be then payable.
See “Description of Notes—Optional Redemption.”
Change of control ...... If a Change of Control Event occurs, each holder of notes may require us to repurchase all or a portion of its notes at a purchase price equal to 101% of the principal amount, plus accrued and unpaid interest if any, through the date of purchase. The term “Change of Control Event” is defined under “Description of Notes—Certain Definitions.”
Use of proceeds ...... We expect to receive net proceeds of approximately U.S.$244.2 million after the initial purchasers’ discounts and commissions and the payment of offering expenses payable by us from the issuance of the notes. We intend to use the net proceeds from this offering (i) to pay the consideration for the Tender Offer and Consent Solicitation and accrued and unpaid interest on the Senior Notes due 2015, (ii) to redeem any Senior Notes due 2015 that are not purchased under the Tender Offer and Consent Solicitation in accordance with the terms of the indenture governing the Senior Notes due 2015, as amended following the Consent Solicitation, if applicable, (iii) to pay fees and expenses incurred in connection with the Tender Offer and Consent Solicitation, and (iv) to the extent any proceeds remain, for general corporate purposes.
Certain covenants ...... The Indenture will contain certain covenants that, among other things, will limit our ability and the ability of our subsidiaries to:
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incur additional indebtedness; pay dividends on our capital stock or redeem, repurchase or retire our capital stock or subordinated indebtedness; make investments; create liens; create any consensual limitation on the ability of our restricted subsidiaries to pay dividends, make loans or transfer property to us; engage in transactions with affiliates; sell assets, including capital stock of our subsidiaries; and consolidate, merge or transfer assets.
If the notes obtain investment grade ratings from at least two of Standard and Poor’s Ratings Group, Fitch Ratings Inc. and Moody’s Investors Services, Inc. and no default has occurred and is continuing, the foregoing covenants will cease to be in effect with the exception of covenants that contain limitations on liens and on, among other things, certain consolidations, mergers and transfer of assets for so long as each of the foregoing rating agencies maintains its investment grade rating.
These covenants are subject to important exceptions and qualifications. See “Description of Notes—Certain Covenants.”
Events of default ...... For a discussion of certain events of default that will permit acceleration of the principal of the notes plus accrued interest, and any other amounts due with respect to the notes, see “Description of Notes—Events of Default.”
Further issuances ...... Subject to the limitation contained in the Indenture, we may from time to time, without notice to or consent of the holders of the notes, create and issue an unlimited principal amount of additional notes of the same series as the notes offered pursuant to this offering circular. See “Description of Notes— Additional Notes.”
Transfer Restrictions ...... We have not registered, and we are not required to and do not currently plan on registering in the immediate future, the notes under the Securities Act and, unless so registered, the notes may not be offered or sold except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable U.S. state securities laws. See “Notice to Investors.” The notes will not be registered in the National Securities Registry (Registro Nacional de Valores) maintained by the CNBV and may not be offered or sold publicly or otherwise be subject to brokerage activities in Mexico, except pursuant to the private placement exemption set forth in Article 8 of the Mexican Securities Market Law. As required under the Mexican Securities Market Law, we will notify the CNBV of the offering of the notes outside of Mexico.
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Such notice will be delivered to the CNBV to comply with a legal requirement and for information purposes only, and the delivery to and the receipt by the CNBV of such notice, does not imply any certification as to the investment quality of the notes or our solvency, liquidity or credit quality or the accuracy or completeness of the information contained in this offering circular.
Book entry; form and denominations ...... The notes will be issued in the form of one or more global notes without coupons, registered in the name of a nominee of The Depository Trust Company (“DTC”), as depositary, for the accounts of its participants including the Euroclear Bank S.A./N.V. (“Euroclear”), and Clearstream Banking, société anonyme, Luxembourg (“Clearstream”). The notes will be issued in minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof. See “Description of Notes.”
Listing ...... Application has been made to the Irish Stock Exchange for the notes to be traded on the Global Exchange Market.
Risk factors ...... See “Risk Factors” and the other information in this offering circular for a discussion of factors you should carefully consider before deciding to invest in the notes.
Governing law ...... State of New York.
Trustee, paying agent, transfer agent and registrar ...... The Bank of New York Mellon.
Listing agent and paying agent in Ireland ...... The Bank of New York Mellon SA/NV, Dublin Branch.
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Summary Consolidated Financial and Other Information
The following information has been derived from and should be read in conjunction with the Financial Statements, together with the related auditor’s report and notes thereto, which have been prepared in accordance with IFRS. The Financial Statements and other financial information included in this offering circular, unless otherwise specified, are stated in Mexican Pesos and include the consolidated results of all of our subsidiaries, including our non-guarantor subsidiaries, such as BAF. For unaudited selected consolidated financial information as of March 31, 2013 and for the three month periods ended March 31, 2013 and 2012 and a discussion of our financial results for the three month periods ended March 31, 2013 and 2012, see Annex A to this offering circular beginning on page A-1. Results of operations for the interim periods are not necessarily indicative of the results that might be expected for any other interim period or for an entire year.
Until 2011, we issued our consolidated financial statements in conformity with MFRS. In accordance with IFRS 1 “First-time adoption of IFRS” we considered January 1, 2011 as our IFRS transition date and January 1, 2012 as our IFRS adoption date. As a result, the Financial Statements have been prepared in accordance to IFRS as issued by the IASB. The amounts included in the Financial Statements for the year ended December 2011 have been reconciled in order to be presented under the same standard and criteria applied for the year ended December 2012.
Income Statement and Balance Sheet Data
Year ended December 31, Jan 01, 2011 2011 2012 2012 (millions of Income Statement Data: (millions of Pesos) USD) Total revenues — 13,865.7 14,123.5 1,089.3 Cost of sales — (7,571.1) (7,536.1) (581.2) Gross profit — 6,294.7 6,587.4 508.1
Selling expenses — (3,024.0) (3,227.0) (248.9) Administrative expenses — (2,146.2) (1,956.3) (150.9) Other income (expenses)-net — (46.3) 71.0 5.5 — (5,216.4) (5,112.3) (394.3)
Operating profit — 1,078.2 1,475.1 113.8 Financial expenses — (777.3) (722.3) (55.7) Financial income — 1.4 64.0 4.9 Financial expenses, net — (775.9) (658.4) (50.8) Profit before income tax — 302.3 816.7 63.0 Income tax — 149.5 107.3 8.3 Profit before discontinued operations — 451.7 924.1 71.3 Discontinued operations — (221.8) (598.5) (46.2) Consolidated net income — 230.0 325.6 25.1 Net income attributable to non-controlling interest — 2.5 2.7 0.2 Net income attributable to controlling interest — 227.4 322.9 24.9
Balance Sheet Data: Cash and cash equivalents 937.2 1,261.5 1,528.7 117.9 Trade receivables-net 14,696.7 17,217.8 18,546.4 1,430.4 Inventories 2,216.0 2,009.8 1,950.7 150.4 Total current assets 19,625.0 22,276.3 23,874.4 1,841.3 Property, leasehold improvements and furniture and equipment, net 2,561.7 2,486.3 2,370.0 182.8 Total non-current assets 5,109.1 5,109.8 5,195.5 400.7 Total assets 24,734.1 27,386.1 29,069.9 2,242.0 Demand deposits and time-deposits 7,697.1 7,528.9 8,382.5 646.5
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Short-term debt 2,743.5 2,426.6 2,583.8 199.3 Trade payables 1,515.0 1,483.1 1,562.6 120.5 Total current liabilities 13,193.8 12,516.2 13,398.2 1,033.3 Time-deposits 1,210.2 2,907.2 3,616.8 278.9 Long-term debt 2,423.0 3,750.7 3,563.6 274.8 Total non-current liabilities 3,867.1 6,855.4 7,382.0 569.3 Total liabilities 17,060.8 19,371.6 20,780.2 1,602.7 Total stockholders’ equity 7,673.3 8,014.5 8,289.7 639.4 Total liabilities and stockholders’ equity 24,734.1 27,386.1 29,069.9 2,242.0
Other Operating Data
Year ended December 31, Jan 01, 2011 2011 2012 2012 (millions of (millions of Pesos) USD)
Selected Segment Financial Data: Segment Total Revenues: Operations in Mexico — 12,030.6 12,353.3 952.8 Operations in the U.S. — 1,731.5 1,715.2 132.3 Other businesses(1) — 1,030.0 949.0 73.2 Total segment total revenues — 14,792.1 15,017.5 1,158.2 Intersegment operations — (926.4) (894.0) (69.0) Total consolidated total revenues — 13,865.7 14,123.5 1,089.3
Segment Operating Profit Before Depreciation and Amortization(2): Operations in Mexico — 1,519.9 1,668.0 128.6 Operations in the U.S. — (2.9) 121.7 9.4 Other businesses — (62.7) 8.7 0.7 Total segment — 1,454.3 1,798.4 138.7 Intersegment operations — (25.4) (8.9) (0.7) Total consolidated — 1,428.9 1,789.5 138.0
Other Financial Data: Credit sales — 11,077.8 11,468.8 884.5 Accounts receivable — 18,855.0 20,250.6 1,561.8 Provision for doubtful accounts — 1,389.5 1,542.1 118.9 Allowance for doubtful accounts — 966.4 1,035.2 79.8 Recoveries — 1,271.7 1,473.3 113.6 Allowance for doubtful accounts as a percentage — 5.1 5.1 — of total accounts receivable Recoveries as a percentage of total — 6.7 7.3 — accounts receivable
Growth and Profitability Ratios (Unaudited): Total revenues growth — — 1.9% —
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Same-store sales growth — 1.3 1.6 — Gross margin — 45.4% 46.6% — Adjusted EBITDA margin(4) — 14.1% 16.8% — Operating profit margin — 7.8% 10.4% — Net income margin — 1.6% 2.3% —
Credit Ratios (Unaudited):
Total debt as percentage of total capitalization(5) — 43.5 42.6 — Total debt to operating profit — 5.7 4.2 — Net debt to operating profit — 4.6 3.1 — Total debt to adjusted EBITDA(3) — 3.2 2.6 — Net debt to adjusted EBITDA(3) — 2.5 1.9 — Adjusted EBITDA minus capital expenditures to gross interest expense(3) — 2.1 3.0 —
Other Operating Data (Unaudited): Number of retail stores 410 401 380 — Total store area (square meters) 541,387 539,918 487,923 — Same-store sales growth (percentage) (5) — 1.3% 1.6% — Mexican retail sales per square meter(6) — 28.5 29.2 — U.S. retail sales per square meter(6) — 26.9 26.6 —
Banco Famsa Deposits (Unaudited)(7): Saving deposits (interest bearing) 4,929.1 2,830.8 2,191.4 169.0 Checking accounts (non-interest bearing) 121.2 208.5 314.1 24.2 Time-deposits: From the general public 3,857.0 7,396.8 9,493.7 732.2 Total Bank Deposits 8,907.3 10,436.1 11,999.3 925.5 Banking Branches 283 288 304 —
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(1) Comprised of our wholesale, furniture manufacturing and footwear catalog businesses in Mexico.
(2) Operating Profit (Loss) Before Depreciation is used as a measure of our segment financial performance that we believe indicates profitability in continuing business activities. Operating Profit (Loss) Before Depreciation and Amortization is different from earnings before interest, taxes, depreciation, and amortization (EBITDA), which reflects adjustments to net income instead of adjustments to operating profit.
(3) Adjusted EBITDA is a non-GAAP financial measure computed under IFRS. Adjusted EBITDA as such term is used in this offering circular consists of adding to the operating profit; interest expense on bank deposits, depreciation and amortization. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—EBITDA and Adjusted EBITDA Reconciliation.”
(4) Adjusted EBITDA margin is calculated as Adjusted EBITDA divided by total revenues.
(5) Total Capitalization is calculated as total debt plus total stockholders’ equity.
(6) Average sales per square meter, in thousands of Pesos.
(7) For a description of BAF’s deposits see “Business—Banco Ahorro Famsa—Products and Services.”
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RISK FACTORS
You should carefully consider the following discussion of risks, as well as all the other information presented in this offering circular before investing in the notes. These risks are not the only risks that affect our business. Additional risks that are presently unknown to us or that we currently deem immaterial may also impair our business. Any of the following risks, if they actually occur, could materially and adversely affect our business, results of operations, financial condition and prospects.
RISK FACTORS RELATED TO OUR BUSINESS
The loss of our market share to competitors may adversely affect our performance.
We face intense competition in each of our product categories. Both the Mexican and U.S. retail markets are highly fragmented, encompassing large store chains, department stores, household appliance and electronics stores, discount warehouse clubs and a broad range of smaller independent specialty stores targeting both high and middle and low-middle income levels.
In Mexico, we compete primarily with two other large domestic retail chains that have nationwide presence and offer similar consumer financing options, namely Grupo Elektra and Coppel. We also compete with other large retail stores, including Grupo Chedraui, Organizacion Soriana, Centros de Descuento Viana, Dico, Gala and with the Mexican subsidiaries or affiliates of international chains such as Wal-Mart and Best Buy. Although to a lesser extent, we also compete with several domestic department store chains, including El Puerto de Liverpool, Grupo Palacio de Hierro, Grupo Hermanos Vazquez y Fabricas de Francia and Sears, which do not have national presence, are targeted towards other population segments and offer less-flexible and other non-consumer options, as well as with informal or “black” markets and street vendors. In the United States, we compete with large U.S. retailers, such as Ashley Furniture, Rooms to Go, Best Buy and Sears, on cash sales, and with local and regional retailers that directly target U.S. Hispanics with in-house credit, such as Conn’s, Continental, LDF and Lacks.
Many of our competitors have resources greater than ours. Some U.S. retail chains have also entered into strategic alliances with our competitors in certain local markets in Mexico, with the aim of opening new stores in those markets. In addition, as a result of the North America Free Trade Agreement (“NAFTA”) and other free trade agreements to which Mexico is a party, other U.S. and European retailers may enter into similar arrangements or alliances in the future. Any increase in the existing competition, the consolidation of the retail sector or the entry of new and more sophisticated competitors into our current or future markets could impact our business activities and, accordingly, have an adverse effect on our margins, results of operations, financial condition and prospects. See “Our Business—Our Markets” and “Our Business—Retail Operations—Competition” below.
Price competition may affect our results of operations.
Price competition in the retail industry is intense. We are subject to increasing pressure to reduce our prices as the industry continues to consolidate and more of our competitors are able to benefit from their economies of scale to offer lower prices. We may be unable to increase or maintain our current gross margins, and the decrease of such margins would have a negative effect on our business.
Our competitiveness and profitability depend on our ability to offer competitive financing terms to our customers.
The consumer finance segments in both Mexico and the United States are highly competitive. We derive a significant portion of our revenues from our sales on credit. The price of the merchandise sold on credit considers various factors, such as the repayment period, the customer’s credit history and the type of product. Our sales on credit yield higher margins than our cash sales. Competition in the consumer finance business may increase significantly as a result of the introduction of new banking and other financial products, such as credit card and personal loans targeted towards the low-middle income class segment of the population, which constitutes our primary target customer base. BAF has faced and will continue to face strong competition in Mexico from banking institutions associated with Famsa Mexico competitors in the retail market, such as Banco Azteca, S.A., institución de banca múltiple, the consumer financing subsidiary of Grupo Elektra, Bancoppel, S.A., institución de banca múltiple, the consumer financing subsidiary of Coppel, and Banco Wal-Mart de México Adelante, S.A., institución
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de banca múltiple, the consumer financing subsidiary of Wal-Mart. See “—Risk Factors Related to Banco Ahorro Famsa.” Any increase in competition could affect our market position if our competitors are able to offer financing terms to our customer base that are more attractive than ours.
In addition, our results of operations and financial condition could be adversely affected by any future imposition of price controls or restrictions on the interest rates that we can charge or other commercial terms under our credit sales program in either Mexico or the United States, or our inability to adjust our credit approval policies in response to future economic conditions. Any increase in competition could also affect the profitability of the consumer finance segment in general, thereby causing our competitors to adopt more aggressive pricing policies. See “Our Business—Consumer Lending Operations—Sales on Credit and Approval Process.”
We depend on Banco Ahorro Famsa deposits as our primary source of financing.
We have traditionally relied on a variety of funding sources, including credit lines with major financial institutions, commercial paper offerings in Mexico and international markets, and equity offerings in Mexico. We have recently transformed our funding strategy to rely principally on BAF’s deposit base as a source of funding for our credit sales program and operations. We are, therefore, subject to the risks associated with BAF’s deposits. See “—Risk Factors Related to Banco Ahorro Famsa.” We cannot guarantee that we will be able to continue to rely on BAF’s deposit base as our primary source of financing or that we will be able to do so on terms favorable to us. We also cannot assure you that our strategy of relying on BAF’s deposits as a source of funding will be an acceptable cost-effective and stable form of financing for our needs.
Furthermore, in the event that BAF’s deposit base is insufficient to finance our credit sales programs or operations, we cannot assure you that we will be able to extend maturities on our current lines of credit, acquire additional financing in the form of credit lines with major financial institutions or continue to access the Mexican or international capital markets on terms acceptable to us. Adverse developments in the Mexican and international credit markets, including higher interest rates, reduced liquidity or decreased interest by financial institutions in lending to us may increase our cost of borrowing or refinancing maturing indebtedness, with adverse consequences to our financial condition and results of operation. We cannot assure you that we will be able to refinance any indebtedness we may incur, including the notes, or otherwise obtain funds by selling assets or raising equity to make required payments on maturing indebtedness.
Famsa is a holding company with no revenue generation of our own and depends upon dividends and other funds from subsidiaries to fund our operations and pay our obligations.
Famsa is a holding company and our operations are conducted through our subsidiaries. As a result, our ability to fund our operations and pay our obligations depends on the ability of our subsidiaries to generate earnings and to pay dividends to us. See “Risk Factors Related to the Notes – Our ability to repay the notes and Famsa’s other debt depends on cash flow from our subsidiaries.”
Our success depends on our ability to retain certain and attract new key executives and maintain good relations with our employees.
Our continued success will depend on our ability to retain certain key executives. In particular, our senior executives have extensive experience in the retail market for household appliances, furniture and consumer finance services, and the loss of any of these executives could have an adverse effect on us (see “Management—Executive Officers”). Competition to attract these types of qualified individuals is intense, and we may be unable to attract key executives with the required experience and skills. We do not maintain key-man insurance on our executive officers and, as a result, we are exposed to the risk of any one or more of such individuals being unable to continue rendering their services to us. Our future success will also depend on our ability to identify, recruit, train and retain qualified sales, marketing and administrative personnel and to manage our personnel turnover. As of December 31, 2012, approximately 31.2% of our employees were affiliated with labor unions. We may be forced to incur increased overhead costs to avoid disruptions in our business operations in the event of a threatened strike or other labor dispute. Any conflict with our labor unions may affect our operations and result in a decrease in our sales volume or an increase in our overhead costs. See “Our Business—Employees” and “Our Management—Executive Officers.”
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We may not be able to acquire an adequate supply of high-quality, low-cost merchandise.
Our future success largely depends on our ability to secure a sufficient volume of merchandise for our stores at an attractive cost. Historically, we have been able to acquire quality merchandise at a low cost, but such merchandise may not be available in the future at all or in amounts sufficient to satisfy the demand from our customers or on terms otherwise acceptable to us. We do not rely heavily on any one supplier of merchandise for our stores. However, we purchase a substantial portion of our product inventories from: Whirlpool, Mabe and Electrolux Home Products, which supply household appliances; Sony, Panasonic and LG Electronics, which supply electronics; and Movistar and Telcel, which supply cellular telephones. Our business operations may be disrupted if we are unable to secure an adequate supply of merchandise at reasonable prices. See “Our Business—Retail Operations—Suppliers.”
Our success depends on our ability to distribute our products to our stores on a timely and cost-efficient basis.
Our success depends on our ability to distribute our products to our stores on a timely and cost-efficient basis. Our nine distribution centers in Mexico and two distribution centers in the United States receive inventory deliveries from our suppliers for processing and subsequent distribution to our stores and warehouses. The orderly operation of our receipt and distribution of inventory requires the effective management of our distribution centers and an adherence to our logistics guidelines. Our operations exert pressure on our inventory receiving and distribution systems, which could be affected by one or more of the following factors:
the upgrade and expansion of our existing distribution centers and the installation of new distribution centers to accommodate future growth;
any disruptions in the operation of, or our ability to improve or upgrade, our information technology infrastructure and management information systems, in particular our supply chain management software system;
disruptions in the delivery processes; and
natural disasters or casualties, such as fires, explosions, hurricanes, tornadoes, floods or earthquakes, which may affect our inventory receipt and distribution processes.
See “Our Business—Retail Operations—Distribution Network.”
Our future operating results may fluctuate and, accordingly, are difficult to predict.
Our annual and quarterly results may experience significant fluctuations due to various factors that are beyond our control, including the seasonal nature of our business. Historically, the demand for our products and services tends to increase during the second and fourth quarters of the year as a result of the increase in consumer spending associated with Mother’s Day, Buen Fin and the Christmas holiday season, respectively. Our quarterly operating results are not indicative of our results for a full year. See “Our Business—Overview—Basic Strategy.”
We are exposed to credit risks in connection with our credit sales program, and our allowance for doubtful accounts may be insufficient to offset such risks.
For the year ended December 31, 2012, sales on credit accounted for 81.2% of our total sales and our accounts receivable reached Ps.19,215 million. As a result, we are exposed to credit risks and may suffer losses if the customers of our credit sales program, personal loans and business credit products do not meet their payment obligations. Our non-performing loans, which are loans that are more than 90 days past due, as a percentage of accounts receivable for the year ended December 31, 2012, were 8.3%. Although we seek to minimize our exposure to this credit risk by subjecting our customers to strict credit approval policies and processes, any impairment in the quality of our loan portfolio or any increase in the amount of our non-performing accounts could affect our results of operations and financial condition if our allowance for doubtful accounts proves insufficient to offset losses therefrom.
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The amount of our allowance for doubtful accounts is determined based on risk considerations given our past practices and experience. Although we believe that our allowance for doubtful accounts is adequate and sufficient to cover any losses associated with our loan portfolio, in the future we may be required or may deem it desirable to increase the amount of such provision. Any increase in our allowance for doubtful accounts may have an adverse effect on our results of operations and financial condition. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Critical Accounting Policies and Estimates—Allowance for Doubtful Accounts,” “Our Business—Regulation—Legal Regime Applicable to Banco Ahorro Famsa” and “Our Business—Consumer Lending Operations.”
Our business operations depend on the integrity of our employees.
Our success and profitability depend largely on the quality and integrity of our employees at every level of our distribution process. Any breach in the quality or integrity of our employees could have an adverse effect on our success and profitability.
Our business operations are dependent, in part, upon the success of our new product and service offerings.
Our success and profitability depend to a certain extent on the market acceptance of our new product and service offerings, such as Internet sales, new consumer financing products, footwear catalog sales, travel packages and automobile financing, in addition to other products and services primarily directed to customers in higher income brackets. Additionally, we expect that through the continuing development and integration of BAF, we will be able to offer a growing variety of personal and business financial products and services in Mexico. Our new products and services could fail to gain market acceptance once available in our stores or at BAF’s branches and we may be unable to anticipate in a timely fashion the ever-changing needs of our customers, which could render obsolete our new product and service offerings. If our competitors in the retail and consumer financing sectors are able to anticipate the market trends better than we are, our market share could decrease. See “Our Business— Overview—Business Strategy.”
We may not be able to achieve our growth expectations in Mexico.
We expect to achieve growth through the opening of new stores in Mexico, but we may be unable to fully implement our growth strategy in Mexico as a result of numerous factors, including adverse changes in economic conditions generally, our inability to secure financing on attractive terms and conditions, the unavailability of suitable retail space, difficulties in complying with the regulatory framework applicable in the jurisdictions in which we intend to open new stores and our inability to attract and retain personnel for our new locations. The performance of any one or more of our new stores may fail to meet our expectations.
In addition, our cash flows may prove insufficient to finance the costs associated with the establishment of new stores, which may require us to seek other sources of financing or close stores. Our growth and expansion strategy would be hindered if we are unable to secure financing on favorable terms and conditions. Our growth and expansion strategy also calls for the opening of new stores in new markets in Mexico, and the performance of such new stores may differ from that of our existing stores. Similarly, the opening of new stores in markets in which we already operate could affect the sales volumes of our existing stores in those markets. In either case, the performance of our new stores may fail to justify the operating expenses associated with the opening of such stores, which could affect our margins. See “Our Business—Overview—Business Strategy” and “Our Business—Our Markets—Expansion Strategy.”
Failures in our information technology systems, or any problem or delay in the installation of new information technology systems, could have an adverse effect on our business operations.
We depend heavily on our information technology (“IT”) systems to conduct our business activities, including our sales processing, inventory purchase and management, product distribution and customer service functions and maintain a cost-efficient operation. From time to time, our IT systems experience failures or suffer disruptions as a result of computer viruses, hacking and other similar events. Any material failure or disruption in our IT systems could result in the loss or damage of our customers’ purchase order information, which could give rise to delays in the delivery of merchandise to our stores and a decrease in sales, particularly during the Christmas holiday season. Furthermore, our ability to remain competitive will depend in part on our ability to upgrade our IT
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systems on a timely, cost-effective basis. We must continually make significant investments and improvements in our IT systems to remain competitive, in particular as we continue to open new stores and distribution centers in Mexico or the United States. In the future, we may be unable to develop or acquire the IT systems necessary to address our customers’ needs or meet our needs in conducting our business activities (such as inventory and purchase management). In addition, any future changes in technology could render our IT systems obsolete or unable to accommodate our growth, which could in turn result in a decrease in sales. See “Our Business— Systems.”
RISK FACTORS RELATED TO BANCO AHORRO FAMSA
We face uncertainties in connection with our banking activities.
BAF was created in 2007 to provide consumer financing and deposit services to our retail customers. The performance of BAF and its ability to attract deposits and successfully offer consumer financing services is directly related to the ability of BAF to obtain deposits from our existing retail customers. However, BAF may find it difficult to attract deposits from or market its services to our existing retail customers who do not yet bank with BAF and who generally do not bank with other institutions. Accordingly, BAF may require additional capital investments in the future. In addition, BAF’s client portfolio is comprised of individuals with no previous or limited credit history who are more likely to default on their repayment obligations during periods of economic crisis.
BAF competes with a number of Mexican banks and Mexican affiliates of foreign financial institutions. The operations and activities of BAF are subject to the legal regime applicable to the Mexican banking industry, the accounting requirements prescribed by the CNBV and various other laws and regulations not otherwise applicable to our business operations (other than BAF’s operations). Such laws, regulations and requirements may impose restrictions upon BAF’s operations and activities and the activities of the Company in general. The application of different accounting standards to BAF from those standards applicable to the rest of the Company may have an adverse effect on the recognition of our income and expenses, which could reduce our profitability. Any future change in the legal regime applicable to BAF could subject it to additional restrictions and affect its business operations and financial results. For more information on the legal regime applicable to BAF, see “Our Business— Regulation—Legal Regime Applicable to Banco Ahorro Famsa.”
We cannot assure you that our banking activities will be successful or profitable. In addition, we cannot guarantee that the results of BAF will not have an adverse effect on our consolidated results of operations. See “Our Business—Banco Ahorro Famsa.”
The short-term nature of BAF’s financing resources may expose it to liquidity risks.
Since 1994, Mexican banks have at times experienced liquidity shortages in the international financial markets, particularly in connection with the refinancing of their short-term debt. We cannot guarantee that the Mexican financial system will not experience liquidity shortages in the future, or that BAF will not be affected by any such liquidity shortage. Although we expect that BAF will be able to repay or refinance its debt, there is no guarantee that it will be able to repay such debt or refinance it on favorable terms.
BAF intends to use its customer deposits as its primary source of financing, and we anticipate that our Mexican customers will continue to demand deposit services (particularly in the form of on-demand or short-term deposits) and short-term loans. However, we cannot guarantee that our customers will place their deposits with BAF or that such deposits will provide a stable source of financing for BAF, which in turn would affect Famsa because it relies on BAF as a principal source of funding. As of December 31, 2012, substantially all of BAF’s deposits had current maturities of one year or less or were payable upon demand. In the past, a substantial portion of our bank deposits has been rolled over upon maturity, however, we cannot assure that this practice will continue and that BAF will be able to maintain the stability or consistency of its deposit base. The withdrawal of deposits by a significant number of BAF’s customers would affect BAF’s liquidity position, which would force BAF to seek financing from other, more expensive sources of short-term or long-term funding to finance BAF’s operations, which, in turn, may have a material adverse effect on our consolidated financial condition or results of operation.
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Changes in the Mexican banking and financial services regulatory framework may affect the results of BAF.
As a Mexican banking institution, BAF is subject to comprehensive regulation and supervision by Mexican banking and financial regulatory authorities, such as Mexico’s Central Bank (Banco de México), the CNBV and the Ministry of Finance and Public Credit. These regulatory authorities have broad powers to adopt regulations and other requirements affecting or restricting virtually all aspects of BAF’s capitalization, organization and operations, including the authority to regulate the interest rates and fees that it is allowed to charge and the other terms and conditions of its consumer lending transactions. Moreover, Mexican banking and financial regulatory authorities possess significant power to enforce applicable regulatory requirements in the event of BAF’s failure to comply with them, including by imposing fines, requiring the contribution of new capital, inhibiting BAF from paying dividends to us or paying bonuses to its employees, and restricting or revoking authorizations, licenses or permits to operate its business. In the event BAF encounters significant financial problems or becomes insolvent or in danger of becoming insolvent, Mexican banking authorities would have the power to take over BAF’s management and operations. See “Our Business—Regulation—Legal Regime Applicable to Banco Ahorro Famsa.”
Mexican banking and financial services laws and regulations are subject to continuing review and changes, and any such future changes may have an adverse impact on, among other things, BAF’s ability to grant and collect on loans, transfer non-performing loans and otherwise extend credit on terms and conditions and at interest rates that are adequately profitable, which could materially and adversely affect BAF’s and our consolidated results of operations and financial position.
The revocation of BAF’s authorization to operate as a banking institution in Mexico or other government approvals to operate its business, or the imposition of any restrictions on BAF’s ability to grant consumer loans, may in turn affect the sales volumes of our retail stores, which rely on the consumer financing supplied by BAF, and in turn affect our results of operations and financial position. See “Our Business—Regulation.”
Future Mexican government restrictions on interest rates and banking fees may affect BAF’s liquidity and profitability.
Our Mexican consumer finance operations implemented through BAF are subject to the legal regime applicable to the Mexican banking industry in general, including the Law for the Protection and Defense of the User of Financial Services (Ley de Protección y Defensa al Usuario de Servicios Financieros). This law does not currently impose any limit on interest rates or banking fees, subject to certain exemptions, that a bank may charge. However, the possibility of imposing such limits has been and continues to be debated by the Mexican Congress and Mexican banking authorities. In the future, the Mexican banking authorities could impose restrictions on the interest rates or fees charged by banks or impose additional disclosure requirements regarding interest rates or fee information. We derive a substantial portion of our revenues and operating flows from our consumer lending business, and the imposition of any such restriction or requirement could impact BAF’s competitiveness and have a material adverse effect on our financial performance.
Any change in the Mexican laws applicable to BAF, including the imposition of credit approval requirements, could have an adverse effect on our financial condition and results of operations. See “Our Business—Regulation—Legal Regime Applicable to Banco Ahorro Famsa.”
Guidelines for loan classification and loan loss reserves in Mexico may be less stringent than those in other countries.
Mexican banking regulations require BAF to classify each loan or type of loan (other than loans to the Mexican government, Banco de México, the Instituto de Protección al Ahorro Bancario (the “IPAB”) and certain international organizations) according to a risk assessment that is based on specified criteria, to establish corresponding reserves and, in the case of some non-performing assets, to write-off certain loans. The criteria to establish reserves include both qualitative and quantitative factors. Mexican regulations relating to loan classification and determination of loan loss reserves are generally different or less stringent than those applicable to banks in the United States. BAF may be required or deem it necessary to increase its loan loss reserves in the future. Increasing loan loss reserves for BAF could materially and adversely affect BAF and our results of operations and financial position.
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BAF may be unable to effectively control the level of non-performing or poor credit quality loans or have insufficient loan loss reserves to cover future loan losses.
Non-performing or low credit quality loans can negatively impact BAF and our results of operations. We cannot assure you that we will be able to effectively control and reduce the level of the impaired loans in BAF’s total loan portfolio. In particular, the amount of BAF’s non-performing loans may increase in the future as a result of growth in BAF’s total loan portfolio, including as a result of loan portfolios that BAF may acquire from time to time or otherwise, or factors beyond our control, such as the impact of macroeconomic trends, political events affecting Mexico or changes to accounting principles or other laws or regulations applicable to us or events affecting our target customers. In addition, BAF’s current loan loss reserves may not be adequate to cover an increase in the amount of non-performing loans or any future deterioration in the overall credit quality of BAF’s total loan portfolio. As a result, if the quality of BAF’s total loan portfolio deteriorates BAF may be required to increase our loan loss reserves, which may adversely affect BAF’s and our financial condition and results of operations. Moreover, there is no precise method for predicting loan and credit losses, and we cannot assure you that our loan loss reserves will be sufficient to cover actual losses. If we are unable to control or reduce the level of BAF’s non- performing or poor credit quality loans, BAF and our financial condition and results of operations could be materially and adversely affected.
Mexican banks, such as BAF, are subject to strict capitalization requirements.
Mexican banks are required to maintain a net capital (capital neto) relative to market risk, risk-weighted assets incurred in its operations and operations risk, which may not be less than the capital required in respect of each type of risk. If BAF were not to comply with these requirements, two risk scenarios could arise: (i) pursuant to articles 134 Bis and 134 Bis 1 of the Mexican Law of Credit Institutions, the CNBV could impose a minimum corrective measure, or (ii) pursuant to numeral V of article 28 of the Mexican Law of Credit Institutions, and under certain circumstances, the CNBV could revoke the authorization granted to BAF to operate as a banking institution in Mexico. See “Our Business—Regulation—Legal Regime Applicable to Banco Ahorro Famsa.” The imposition of either scenario, or the consequences therefrom, could adversely affect BAF’s and our financial condition and results of operations.
On September 2010, the Basel Committee on Banking Regulations and Supervisory Practices, or the Basel Committee, proposed comprehensive changes to the capital adequacy framework, known as Basel III. On December 16, 2010 and January 13, 2011, the Basel Committee issued its final guidance on a number of regulatory reforms to the regulatory capital framework in order to strengthen minimum capital requirements, including the phasing out of innovative Tier 1 and 2 Capital instruments with incentive-based redemption clauses and implementing a leverage ratio on institutions in addition to current risk-based regulatory requirements. On November 28, 2012, the SHCP published several amendments to the regulations applicable to financial institutions for the implementation of Basel III standards in Mexico, which result in new requirements in respect of regulatory capital, liquidity/funding and leverage ratios applicable to Mexican banks, that could have a material adverse effect on BAF, including our results of operations. Most of these amendments became effective as of January 1, 2013.
BAF may be required to make significant contributions to IPAB.
Under applicable Mexican law, Mexican banks are required to make monthly contributions to the IPAB to support its operations that are equal to 1/12 of 0.4% (the annual rate) multiplied by the average of certain liabilities minus the average of certain assets. The IPAB was created in January 1999 to manage the bank savings protection system and regulate the financial support granted to troubled banking institutions in Mexico. Mexican authorities impose regular assessments on banking institutions covered by the IPAB for funding. BAF contributed Ps.38.5 million in 2011 and Ps.45.3 million at December, 2012 to the IPAB. In the event that IPAB’s reserves are insufficient to manage the bank savings protection system and provide the necessary financial support granted to troubled banking institutions, the IPAB maintains the limited right to require extraordinary contributions to participants in the Mexican banking system.
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BAF may not be able to detect money laundering and other illegal or improper activities fully or on a timely basis, which could expose BAF to additional liability and harm our business.
BAF is required to comply with applicable anti-money laundering laws and other regulations in Mexico. These laws and regulations require BAF, among other things, to adopt and enforce “know your customer” policies and procedures and to report suspicious and large transactions to the applicable regulatory authorities. While BAF has adopted policies and procedures aimed at detecting and preventing the use of BAF’s banking network for money laundering activities, such policies and procedures may not completely eliminate instances where BAF may be used by other parties to engage in money laundering and other illegal or improper activities. To the extent BAF fails to fully comply with applicable laws and regulations, the relevant government agencies to which we report have the power and authority to impose fines and other penalties on BAF, including revoking BAF’s authorization to engage in commercial banking activities in Mexico. In addition, BAF’s and our business and reputation could suffer if we fail to detect and prevent customers who engage in money laundering or other illegal or improper activities. See “Our Business—Regulation—Legal Regime Applicable to Banco Ahorro Famsa.”
Failure to successfully implement and continue to upgrade BAF’s credit risk management system could materially and adversely affect BAF’s business operations and prospects.
One of the principal types of risks inherent to BAF’s business is credit risk. We may not be able to, on a timely basis, upgrade BAF’s credit risk management system. For example, an important part of BAF’s credit risk management system is to employ an internal credit rating system to assess the particular risk profile of a client. Because this process involves a detailed analysis of the client’s credit risk profile that takes into account not just quantitative but qualitative factors that require human judgment to be exercised, the process is subject to human error. In exercising their judgment, BAF’s employees may not always be able to assign an accurate credit rating to a client, which may result in BAF’s exposure to higher credit risks than indicated by BAF’s internal credit rating system. However, BAF may not be able to timely detect these risks before they occur, or due to limited resources or tools available to BAF, BAF’s employees may not be able to effectively implement the system, which may increase BAF’s credit risk exposure. As a result, failure to implement effectively, consistently follow or continuously refine BAF’s credit risk management system may result in a higher risk exposure for us, which could materially and adversely affect BAF’s and our results of operations and financial position.
Reductions in BAF’s credit ratings would increase its cost of borrowing funds and make its ability to raise new funds, attract deposits or renew maturing debt more difficult.
The credit ratings of BAF are an important component of its liquidity profile. Among other factors, BAF’s credit ratings are based on the financial strength, credit quality and concentrations in its total loan portfolio, the level and volatility of its earnings, its capital adequacy, the quality of management, the liquidity of its balance sheet, the availability of a significant base of core retail and commercial deposits and its ability to access funding sources. BAF currently has a credit rating of 'B' global-scale and ‘mxBBB-/mxA-3’ Mexican national-scale issuer from Standard & Poor’s and ‘BBB(mex)’ and ‘F3(mex)’ Mexican national-scale issuer from Fitch. Changes (downgrades) in BAF’s credit ratings would increase its cost of borrowing funds or renewing maturing debt or could affect its ability to access the capital markets. The ability of BAF to compete successfully in the marketplace for deposits depends on various factors, including its financial stability as reflected by its credit ratings. A downgrade in BAF’s credit rating may adversely affect perception of its financial stability and its ability to raise deposits.
RISK FACTORS RELATED TO MEXICO
Mexican federal governmental policies or regulations could adversely affect our business, financial condition, results of operations and prospects.
We are a Mexican corporation and a significant portion of our assets are located in Mexico. As a result, our business, financial condition, results of operations and prospects are subject to political, economic, legal and regulatory risks specific to Mexico. The Mexican federal government has exercised, and continues to exercise, significant influence over the Mexican economy. Accordingly, Mexican federal governmental actions, fiscal and monetary policy and regulation of state-owned enterprises, such as Pemex, and of private industry could have an impact on Mexican private sector entities, including our company, and on market conditions, prices and returns on Mexican securities, including our securities. Any change in the current consumer protection or consumer finance
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regulatory policies could have a significant effect on Mexican retailers and consumer finance services providers (including us), variations in interest rates, demand for our products and services, market conditions and the prices of and returns on Mexican securities. We cannot assure potential investors that changes in Mexican federal governmental policies will not adversely affect our business, financial condition, results of operations and prospects. We do not have and do not intend to obtain political risk insurance.
Weakness in the Mexican economy could adversely affect our business, financial condition and results of operations.
Our business, results of operations and financial condition are dependent in part on the level of economic activity in Mexico. Periods of slow economic growth in Mexico could materially and adversely affect our results of operations and financial position. According to Banco de México estimates:
In 2008, GDP increased by 1.2%;
In 2009, GDP decreased by 6.0%;
In 2010, GDP increased by 5.3%;
In 2011, GDP increased by 3.9%; and
In 2012, GDP increased by 3.9%
Although in the last few years, interest rates have fallen gradually, historically Mexico has had high real and nominal interest rates. The interest rates on 28-day Mexican government treasury securities (certificados de la tesorería or “CETES”) averaged approximately 7.2%, 7.7%, 5.4%, 4.4%, 4.2%, and 4.2% for 2007, 2008, 2009, 2010, 2011, and 2012, respectively. Relative to the U.S. Dollar, the Peso depreciated by 26.7% in 2008, appreciated by 5.5% in 2009, appreciated by 5.5% in 2010, depreciated by 12.9% in 2011, and appreciated by 7.0% in 2012, all in nominal terms. Accordingly, to the extent that we incur Peso-denominated debt in the future, it could be at interest rates higher than the current rates.
As a consequence of the global recession and economic slowdown of 2008, the Mexican economy entered into recession. In the last few years, the economy has shown recovery, but Mexico’s main macroeconomic indicators continue to be negatively affected, including a rise in unemployment, decline of interest rates, higher inflation and a devaluation of the Peso against the U.S. Dollar. As a result, consumer purchasing power may decrease and demand for furniture, electronics and household appliances may also decrease.
Mexico may experience high levels of inflation in the future, which could adversely affect our business, financial condition, results of operations and prospects.
Mexico has a history of high levels of inflation and may experience high inflation in the future. Historically, inflation in Mexico has led to higher interest rates, depreciation of the Peso and the imposition of substantial government controls over exchange rates and prices, which at times has adversely affected our operating revenues and margins. The annual rate of inflation for the last three years, as measured by changes in the NCPI, as provided by Banco de México, was 3.6% in 2009, 4.4% in 2010, 3.8% in 2011 and 3.6% in 2012. Although inflation is less of an issue today than in past years, we cannot assure you that Mexico will not experience high inflation in the future, including in the event of a substantial increase in inflation in the United States. A substantial increase in the Mexican inflation rate could adversely affect consumer purchasing power, thereby negatively impacting demand for our products, and would increase some of our costs, which could adversely affect our business, financial condition, results of operations and prospects.
Fluctuations in the exchange rate between the Peso and the U.S. Dollar could lead to an increase in our cost of financing and have an adverse effect on our financial condition and results of operations.
Currently, the Peso-U.S. Dollar exchange rate is determined on the basis of a free market float in accordance with the monetary policy set by Banco de México. There are no restrictions on the ability of Mexican or foreign persons or entities to convert Pesos into U.S. Dollars or other currencies. There is no guarantee that Banco
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de México will maintain the current exchange rate regime or that Banco de México will not adopt a different monetary policy that may affect the exchange rate itself or our ability to exchange Pesos into foreign currencies, including the U.S. Dollar.
Any change in the monetary policy, the exchange rate regime or in the exchange rate itself, as a result of market conditions over which we have no control, could have a considerable impact on our business, financial condition and results of operations.
87.8% of our revenues are Peso-denominated and therefore, any decrease in the value of the Peso against the U.S. Dollar would increase the cost of our products and our U.S. Dollar-denominated debt, which would have an adverse effect on our financial condition and results of operations. The value of the Mexican Peso has been subject to significant fluctuations with respect to the U.S. Dollar in the past and may be subject to further fluctuations in the future. In 2011, as a consequence of the global economic and financial crisis, the Peso depreciated 12.9% against the U.S. Dollar in nominal terms. However in December 2012, the Peso had appreciated 7.0% against the U.S. Dollar in nominal terms. A depreciation of the Peso in the future may result in a disruption of the international foreign exchange markets. This could limit our ability to transfer or convert Pesos into U.S. Dollar and other currencies and adversely affect our ability to meet our current U.S. Dollar-denominated obligations, including the notes issued hereby, and any other U.S. Dollar-denominated obligations that we may incur in the future.
Political events in Mexico may affect our operations.
Enrique Peña Nieto won Mexico’s July 1, 2012 presidential election, and took office on December 1, 2012. With the July 1, 2012 federal elections, Mexican Congress remained politically divided, as the Partido Revolucionario Institucional, which is the political party to which President Peña Nieto belongs, does not have majority control. The lack of alignment between Mexican Congress and the Mexican President could result in deadlock and prevent the timely implementation of political and economic reforms, which in turn could have a material adverse effect on Mexican economic policy and on our business. It is also possible that political uncertainty may adversely affect Mexico’s economic situation.
These and other future developments in the Mexican political or social environment may cause disruptions to our business operations and decreases in our sales and net income.
Mexico has experienced a period of increased criminal activity and such activities could adversely affect the country’s economy and, in turn, our results of operations.
Mexico has experienced a period of increased criminal activity and violence, primarily due to organized crime. These activities, the violence associated with them and their escalation could have a negative impact on Mexico´s business environment. This impact may cause disruptions in our business operations and negatively affect our results of operations.
Terrorist activities, violence and geopolitical events and their consequences could adversely affect our business, financial condition, results of operations and prospects.
Violence or the continued threat of violence, organized crime, or terrorist activities in Mexico and elsewhere, and the potential for military action and heightened security measures in response to such threats, may cause significant disruption to commerce throughout the world, including restrictions on cross-border transport and trade. In addition, related political events may cause a lengthy period of uncertainty that may adversely affect our business. Political and economic instability in Mexico could negatively impact our operations. The consequences of violence or terrorism and the responses are unpredictable and could have an adverse effect on our business, financial condition, results of operations and prospects.
Developments in other countries could adversely affect the Mexican economy, our results of operations, the market value of our securities and our ability to obtain financing.
The global economy, including the United States, continues to experience a period of slowdown and volatility and has been materially and adversely affected by a significant lack of liquidity, loss of confidence in the financial sector, disruption in the credit markets, reduced business activity, rising unemployment, decline in interest
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rates and erosion of consumer confidence. Mexico’s economy is largely influenced by the global economic conditions, in particular in the United States as a result of various factors, including the volume of commercial transactions under NAFTA and the increased level of economic activity between the United States and Mexico. The macroeconomic environment in which we operate is beyond our control, and the future economic environment may experience further periods of slowdown and volatility. Our level of revenues depends to a significant extent on our stores’ ability to maintain high sales volumes, efficient inventory and distribution levels and strict control systems, which in turn depend on the recuperation of the global economy. There is no assurance when such recuperation will take place or the current economic conditions will ameliorate. We are also exposed to changes or re-negotiations of NAFTA, which may affect the Mexican economy. The risks associated with current and potential changes in the Mexican economy as a consequence of the global economic conditions are significant, extremely difficult to forecast and mitigate and could have a material adverse effect on our business and results of operations
The market value of securities of Mexican companies is also, to varying degrees, affected by economic and market conditions in other emerging market countries. Although economic conditions in these countries may differ significantly from economic conditions in Mexico, investors’ reactions to developments in any of these other countries may have an adverse effect on the market value of securities of Mexican issuers. In recent years, for example, prices of both Mexican debt securities and Mexican equity securities dropped substantially as a result of developments in Russia, Asia and Brazil.
In addition, due to recent developments in the international credit markets, capital availability and the cost of capital could be significantly affected and could restrict our ability to obtain financing or refinance our existing indebtedness on favorable terms, if at all.
High interest rates in Mexico could increase our financing and operating costs.
Historically, Mexico has had high real and nominal interest rates. The interest rates on 28-day Mexican CETES averaged 21.3%, 15.3% and 11.3% for 1999, 2000 and 2001, respectively. Although average rates for 2007, 2008, 2009, 2010, 2011, and 2012, were 7.2%, 7.7%, 5.4%, 4.4%, 4.2%, and 4.2%, respectively, we cannot assure that they will remain at their current levels. Thus, if we are to incur Mexican Peso-denominated debt in the future, it may be at interest rates higher than the current rates.
The recent Mexican tax reforms may have an adverse effect on our clients, which in turn may adversely affect our business.
During November 2009, the Mexican Congress approved a general tax reform, effective as of January 1, 2010. The general tax reform included an increase of the highest income tax rate from 28% to 30%, which will be reduced to 29% in 2013 and to 28% in 2014 and subsequent fiscal years. The tax reform also included an increase in the value added tax rate from 15% to 16%. This tax reform may adversely affect the financial position of our customers, which may in turn adversely affect our business. On December 17, 2012 a provision was published in the Mexican Official Gazette, in which the income tax rates reduction is postponed to 2014. Therefore, the income tax rate for 2013 is 30%.
RISK FACTORS RELATED TO THE UNITED STATES
Our operations in the United States are exposed to various risks, some of which differ from those we face in Mexico.
We operate in the U.S. retail industry. For the year ended December 31, 2012, sales in the United States accounted for 12.1% of our consolidated total revenue. As a result, we are exposed to the risks associated with doing business in the United States, including, but not limited to, the risks of:
economic recessions;
changes in government policies;
international developments;
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contraction in the employment market for U.S. Hispanics;
acts of war or terrorism;
political instability; and
protectionist government policies, including immigration policy.
Any of these risks may affect our business operations in the United States and, accordingly, the Company as a whole. For example, precipitated by the economic downturn beginning in 2008 that adversely affected Hispanic consumers in many of our markets in the United States, we posted operating losses in Famsa stores located in California, Nevada and Arizona and elected in 2012 to close our stores in those states.
The U.S. consumer finance sector is subject to numerous U.S. federal, state and local laws and regulations, including some that impose information disclosure requirements on retailers engaged in the sale of merchandise on credit and others (e.g., usury laws) that limit the amount of interest or interest rates that retailers may charge their customers and other commercial terms. The U.S. government also enacted legislation regulating, among other things, the U.S. credit markets and established a federal consumer protection agency. We are also subject to numerous laws and regulations applicable to the U.S. retail industry generally, including laws and regulations in connection with the import, marketing and sale of products, consumer protection and zoning. Any change in the regulatory framework in the United States, or the imposition of special authorization requirements in connection with our credit sales program, may adversely affect our U.S. operations and in turn our business operations and financial condition.
In addition, our U.S. operations are subject to various immigration laws and regulations that require us to verify the employment eligibility of our personnel in that country and to maintain appropriate records to evidence our compliance therewith. While some of these requirements may change or become more stringent as a result of a proposed overhaul of the entire U.S. immigration system, the federal legislative bodies of the United States government have yet to approve a series of proposals in connection therewith, including certain proposed legislation that would result in the imposition of more severe penalties to any person that enables others to reside or remain in the U.S. illegally. If these proposed reforms are approved and incorporated into law, we may be forced or compelled to adopt stricter employment and credit eligibility requirements so as to ensure that all of our employees and customers are legal residents of the United States. This would cause us to incur additional expenses to comply with any such new law.
Adverse economic conditions in the United States may adversely affect our financial condition and results of operations.
Our continued success depends largely on the economic conditions in the countries in which we operate. The global economy, including the United States, continues to experience a period of slowdown and volatility and has been materially and adversely affected by a significant lack of liquidity, loss of confidence in the financial sector, disruption in the credit markets, reduced business activity, rising unemployment, decline in interest rates and erosion of consumer confidence. This situation has had a direct adverse effect on the purchasing power of, and the credit available to, our customers in the United States, and has reduced the quality of our loan portfolio. Our vendors, upon which we depend to provide us with financing on our purchases and inventory and services, are similarly affected. Continuing deterioration may harm our financial condition, inhibit demand for our services and adversely affect our suppliers and customers. The risks associated with current and potential changes in the United States economy are significant, extremely difficult to forecast and mitigate and could have a material adverse effect on our business and results of operations.
Terrorist activities, violence and geopolitical events and their consequences could adversely affect our business, financial condition, results of operations and prospects.
Violence, organized crime, or terrorist activities in the United States and elsewhere, and the potential for military action and heightened security measures in response to such threats, may cause significant disruption to commerce throughout the world, including restrictions on cross-border transport and trade. In addition, related political events may cause a lengthy period of uncertainty that may adversely affect our business. Political and
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economic instability in the United States could negatively impact our operations. The consequences of violence or terrorism and the responses are unpredictable and could have an adverse effect on our business, financial condition, results of operations and prospects.
RISK FACTORS RELATED TO THE NOTES
Our indebtedness could adversely affect our financial condition and impair our ability to fulfill our obligations under the notes.
Our ability to meet our debt service requirements will depend on our future performance, which is subject to a number of factors, many of which are outside our control. We cannot assure you that we will generate sufficient cash flow from operating activities to meet our debt service and working capital requirements.
As of December 31, 2012, we had Ps.4,619 million of net debt, and our ratio of net debt to Adjusted EBITDA at the close of December 31, 2012 was 1.9x to 1.0x.
Our level of indebtedness may have important negative effects on our future operations, including:
impairing our ability to obtain additional financing in the future for working capital, capital expenditures, acquisitions or other general corporate purposes;
requiring us to dedicate a substantial portion of our cash flow to the payment of principal and interest on our indebtedness, which reduces the availability of our cash flow to fund working capital, capital expenditures, acquisitions and other general corporate purposes;
subjecting us to the risk of increased sensitivity to interest rate increases on our indebtedness with variable interest rates, including our borrowings under our credit facilities;
increasing the possibility of an event of default under the financial and operating covenants contained in the agreements governing our outstanding indebtedness; and
limiting our ability to adjust to rapidly changing market conditions, reducing our ability to withstand competitive pressures and making us more vulnerable to a downturn in general economic conditions or our business than our competitors with less debt.
If we are unable to generate sufficient cash flow from operations in the future to service our debt, we may be required to refinance all or a portion of our existing debt or to obtain additional financing. We cannot assure you that any such refinancing would be possible or that any additional financing could be obtained on terms acceptable to us or at all. Our inability to obtain such refinancing or financing may have a material adverse effect on us.
Our ability to repay the notes and Famsa’s other debt depends on cash flow from our subsidiaries.
Famsa is a holding company whose only material assets are its ownership interests in its subsidiaries. Famsa’s subsidiaries are separate and distinct legal entities. Consequently, Famsa depends on distributions or other inter-company transfers of funds from its subsidiaries to meet Famsa’s debt service and other obligations, including with respect to the notes. Famsa’s subsidiaries are not obligated to make funds available to Famsa for the payment on the notes. Famsa cannot assure you that the funds received from Famsa’s subsidiaries will be sufficient to enable Famsa to make payments on the notes. Any payment of dividends, distributions, loans or advances by our subsidiaries is limited by general provisions of Mexican law regarding allocation of corporate profits, including those regarding mandatory employees’ profit-sharing. Under Mexican law, our subsidiaries may only pay dividends out of retained earnings and after all losses from prior fiscal years have been satisfied. Our banking subsidiary BAF may be restricted from paying dividends to us if it does not meet its required regulatory capital ratios or does not have sufficient retained earnings (see “Our Business—Regulation—Legal Regime Applicable to Banco Ahorro Famsa”). Payment of dividends by our subsidiaries will also be contingent upon our subsidiaries’ earnings and business considerations and contractual restrictions contained in debt instruments (see “—Risk Factors Related to the Notes—Restrictive covenants in our debt agreements may restrict the manner in which we can operate our business”). Additionally, our right to receive any assets of any of our subsidiaries as an equity holder of those
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subsidiaries, upon their liquidation or reorganization, will be effectively subordinated to the claims of our subsidiaries’ creditors, including trade creditors, and, in the case of BAF, will be subject to the special liquidation provisions applicable to Mexican banking institutions (see “Our Business—Regulation—Legal Regime Applicable to Banco Ahorro Famsa”). For additional information concerning these restrictions, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources Indebtedness.”
Certain of our subsidiaries, including BAF, are not guarantors, and our obligations with respect to the notes will be effectively subordinated to all liabilities of these non-guarantor subsidiaries.
The guarantors of the notes do not include all of our subsidiaries. However, our financial information (including the Financial Statements included herein) is presented on a consolidated basis. Any right that we or the guarantors have to receive assets of any of the non-guarantor subsidiaries upon the liquidation or reorganization of those subsidiaries, and the consequent rights of holders of notes to realize proceeds from the sale of any of those subsidiaries’ assets, will be effectively subordinated to the claims of that subsidiary’s creditors, including trade creditors and holders of debt of that subsidiary. In addition, payments to us by our subsidiaries may be subject to legal restrictions on repatriation of earnings or currency exchange.
We and our subsidiary guarantors may incur substantially more debt, which could further exacerbate the risks associated with our indebtedness.
We may be able to incur substantial additional debt in the future. Although the agreements governing our and our subsidiary guarantors’ outstanding indebtedness contain restrictions on the incurrence of additional indebtedness, these restrictions are subject to a number of qualifications and exceptions, and the indebtedness incurred in compliance with these restrictions could be substantial. Also, these restrictions do not prevent us or our subsidiary guarantors from incurring obligations that do not constitute “indebtedness” as defined in the relevant documents. Adding new debt to our current indebtedness levels would increase our leverage. The related risks that we now face could intensify.
The instruments governing our indebtedness, including the notes offered hereby, contain cross-default provisions that may cause all of the debt issued under such instruments to become immediately due and payable as a result of a default under an unrelated debt instrument.
The indenture governing the notes contains numerous restrictive covenants. Instruments governing our other indebtedness also contain certain affirmative and negative covenants and require us and our subsidiaries to meet certain financial ratios and tests. Our failure to comply with the obligations contained in the indenture or other instruments governing our indebtedness could result in an event of default under the applicable instrument, which could then result in the related debt and the debt issued under other instruments becoming immediately due and payable. In such event, we would need to raise funds from alternative sources, which may not be available to us on favorable terms, on a timely basis or at all. Alternatively, such default could require us to sell our assets and otherwise curtail operations in order to pay our creditors.
The notes and the guarantees will be unsecured and effectively subordinated to our secured indebtedness and to certain claims preferred by statute.
The notes and the obligations of the subsidiary guarantors under their respective guarantees will be unsecured obligations of the Issuer and the subsidiary guarantors, respectively, and will be subordinate to our secured indebtedness and obligations given preference by mandatory provisions of law (including certain claims relating to taxes and labor) and will rank equally with all of our other unsecured indebtedness.
If we become insolvent or are liquidated, or if payment under any secured debt is accelerated, the lenders thereunder would be entitled to exercise the remedies available to a secured lender. Accordingly, the lender would have priority over any claim for payment under the notes to the extent of the value of the assets that constitute its collateral. If this were to occur, it is possible that there would be no assets remaining from which claims of the holders of the notes could be satisfied. Further, if any assets did remain after payment of these lenders, the remaining assets might be insufficient to satisfy the claims of the holders of the notes and holders of other unsecured
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debt that is deemed the same class as the notes, and potentially all other general creditors who would participate ratably with holders of the notes.
Restrictive covenants in our debt agreements may restrict the manner in which we can operate our business.
The agreements governing our outstanding indebtedness limit, among other things, our ability to:
incur additional indebtedness or issue guarantees;
pay dividends on our capital stock or redeem, repurchase or retire our capital stock or subordinated indebtedness;
make investments;
create liens;
create any consensual limitation on the ability of our restricted subsidiaries to pay dividends, make loans or transfer property to us;
engage in transactions with affiliates;
sell assets, including capital stock of our subsidiaries; and
consolidate, merge or transfer assets.
If we fail to comply with these covenants, we would be in default under our credit facilities, and the principal and accrued interest on our outstanding indebtedness may become due and payable. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Peso-Denominated Credit Facilities,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Commercial Paper Programs,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations—U.S. Dollar-Denominated Credit Facilities” and “Description of Notes—Certain Covenants.” In addition, our future indebtedness agreements may contain additional affirmative and negative covenants, which could be more restrictive than those contained in the instruments governing our existing indebtedness.
These restrictions could limit our ability to seize attractive growth opportunities for our businesses that are currently unforeseeable, particularly if we are unable to incur financing or make investments to take advantage of these opportunities.
We may not have the ability to raise the funds necessary to finance the change of control offer required by the indenture.
Upon the occurrence of a change of control event (as defined in the indenture), we will be required to offer to purchase all outstanding notes at 101% of their principal amount plus accrued and unpaid interest to the date of repurchase. Upon such a change of control event, we may not have sufficient funds available to repurchase all of the notes tendered pursuant to this requirement. In addition, we may be prohibited by future credit facilities from repurchasing any of the notes unless the lenders thereunder consent to such repurchase. Our failure to repurchase the notes would be a default under the indenture, which would, in turn, be a default under our credit facility and, potentially, other debt. If the payment of any debt were to be accelerated, we might be unable to repay these amounts or make the required repurchase of the notes. See “Description of Notes—Change of Control.”
We may not be able to make payments in U.S. Dollars.
In the past, the Mexican economy has experienced balance of payments deficits and shortages in foreign exchange reserves. While the Mexican government does not currently restrict the ability of Mexican or foreign persons or entities to convert Pesos to foreign currencies, including U.S. Dollars, it has done so in the past and could do so again in the future. We cannot assure you that the Mexican government will not implement a restrictive exchange control policy in the future. Any such restrictive exchange control policy could prevent or restrict our
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access to U.S. Dollars to meet our U.S. Dollar obligations and could also have a material adverse effect on our business, financial condition and results of operations. We cannot predict the impact of any such measures on the Mexican economy.
The notes are subject to restrictions on transfer within the United States or to U.S. persons and may be subject to transfer restrictions under the laws of other jurisdictions.
We have not and do not intend to register the notes under the U.S. Securities Act or any U.S. state securities laws, and we have not undertaken to conduct any registered exchange offer for the notes. Accordingly, you may not offer the notes for sale in the United States or to U.S. persons (as defined in Regulation S), except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the U.S. Securities Act and applicable state securities laws, or pursuant to an effective registration statement. Furthermore, we have not registered the notes under any other country’s securities laws. It is your obligation to ensure that your offers and sales of the notes within the United States and elsewhere comply with applicable securities laws. See “Notice to Investors.”
An active trading market may not develop for the notes, which may limit your ability to resell them.
The notes will constitute a new class of securities for which there is currently no established trading market. We expect to make an application to list the notes on the Official List of the Irish Stock Exchange and for trading on the Global Exchange Market, a market of the Irish Stock Exchange, in accordance with its rules. We do not intend to list the notes on any other stock exchange or seek their admission for trading on the National Association of Securities Dealers Automated Quotation System and we may delist the notes from Official List of the Irish Stock Exchange at any time, should they become listed on that exchange. Although the initial purchasers have advised us that they intend to make a market in the notes, they are not obligated to do so, and they may cease to do so at any time without notice. The lack of an active trading market for the notes would have a material adverse effect on the market price and liquidity of the notes. If a market for the notes develops, the notes may trade at a discount from their initial offering price.
In addition, you may not be able to sell your notes at a particular time or at a price favorable to you. Future trading prices of the notes will depend on many factors, including:
our operating performance and financial condition;
the interest of securities dealers in making a market;
the market for similar securities;
prevailing interest rates;
changes in earnings estimates or recommendations by research analysts who track our notes or the notes of other companies in our industry;
changes in general economic conditions;
acquisitions, strategic alliances or joint ventures involving us or our competitors; and
other developments affecting us, our industry or our competitors.
Historically, the market for non-investment grade debt has been subject to disruptions that have caused substantial volatility in prices. The market for the notes, if any, may be subject to similar disruptions. A disruption may have a negative effect on you as a holder of the notes, regardless of our prospects or performance.
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The indenture governing the notes will contain periodic reporting requirements that will be different and less burdensome than would be applicable to us if we had agreed to register the notes following the closing of the offering.
We do not presently file periodic reports and other information with the SEC, and the indenture governing the notes will not require us to file such reports or other information. The indenture will require us to provide annual and quarterly reports, including English language translations, to the holders of notes and the trustee. The requirements of the indenture, however, will be more limited in certain respects than those applicable to public companies under the Exchange Act. See “Description of Notes—Certain Covenants—Reports to Holders.”
You may not be able to effect service of process on the Issuer, our subsidiaries or directors or to enforce in Mexican courts judgments obtained against us in the United States.
Famsa is a publicly-traded variable capital corporation (sociedad anónima bursátil de capital variable) and our subsidiaries (except for Famsa, Inc., a subsidiary organized under the laws of the State of California, and Famsa Financial, Inc., a subsidiary organized under the laws of the State of Texas) are variable capital corporations (sociedades anónimas de capital variable) and in the case of BAF, a corporation (sociedad anónima) authorized to conduct banking activities as an institución de banca múltiple, organized under the laws of Mexico, and headquartered, managed and operated outside of the United States (principally in Mexico). Almost all of our directors and officers reside outside the United States. Substantially all of the assets of such persons are located outside the United States. Furthermore, a majority of our assets are located in Mexico. As a result, it may not be possible for investors to effect service of process within the United States or in any other jurisdiction outside of Mexico upon us, our directors or officers or our subsidiaries (except for Famsa, Inc. and Famsa Financial Inc.) or to enforce against such parties in any jurisdiction outside of Mexico judgments predicated upon the laws of any such jurisdiction, including any judgment predicated upon the federal and state securities laws of the United States. We have been advised by our Mexican counsel, Mijares, Angoitia, Cortés y Fuentes, S.C., that there is doubt as to the enforceability in Mexican courts of civil liabilities under the laws of any jurisdiction outside of Mexico, including any judgment predicated solely upon the federal and state securities laws of the United States.
Payment of judgments entered against us in Mexico will be in Pesos, which may expose you to exchange rate risks.
Under Article 8 of the Ley Monetaria de los Estados Unidos Mexicanos (the “Mexican Monetary Law”), in the event that proceedings are brought in Mexico seeking to enforce in Mexico our obligations under the notes, we would not be required to discharge such obligations in Mexico in a currency other than the Mexican Peso. Pursuant to Article 8 of the Mexican Monetary Law, an obligation which is payable in Mexico in a currency other than the Mexican Peso, as a result of an action initiated in Mexico or of the enforcement of a judgment in Mexico or otherwise, may be satisfied in Pesos at the rate of exchange in effect on the date when payment is made. Such exchange rate currently is determined by Banco de México every business banking day in Mexico and published the following business banking day in the Official Gazette of Mexico. It is unclear, however, whether the applicable rate of exchange applied by a Mexican court to determine the amount owed will be the rate prevailing at the time when the judgment is rendered or when the judgment is paid. Provisions purporting to limit our liability to discharge our obligations as described above, or purporting to give any legitimate party an additional course of action seeking indemnity or compensation for possible deficiencies arising out of or resulting from variations in rates of exchange may not be enforceable in Mexico.
If we, the subsidiary guarantors or future guarantors were to be declared bankrupt, holders of the notes may find it difficult to collect payment on the notes.
Under Mexico’s Ley de Concursos Mercantiles (the “Mexican Bankruptcy Law”), upon our declaration of insolvency (concurso mercantil) or bankruptcy, or in the event that actions and claims are initiated in the courts of Mexico, our obligations under the notes:
(i) would be converted into Pesos at the exchange rate published by Banco de México prevailing at the time of such declaration and would subsequently be converted into Unidades de Inversión (“UDIs”), which is a unit pegged to the consumer price index determined by Banco de México, and payment would occur at the time claims of our other creditors are satisfied;
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(ii) would be subject to any provisional remedy (“providencia precautoria”), which may be issued in such proceedings;
(iii) would be dependent upon the outcome of, and priorities recognized in, the insolvency or bankruptcy proceedings which differ from those in other jurisdictions such as the United States, including with respect to the treatment of intercompany debt;
(iv) would not be adjusted to take into account depreciation of the Peso against the U.S. Dollar occurring after such declaration of insolvency or bankruptcy and the notes would cease to accrue interest from the date a reorganization proceeding is declared; and
(v) would be subject to certain statutory preferences, including tax, social security and labor claims and secured creditors.
Under the Mexican Bankruptcy Law, it is possible that in the event we are declared insolvent or bankrupt, any amount by which the stated principal amount of the notes exceeds their accreted value may be regarded as not mature and, therefore, claims of holders of the notes may be allowed only to the extent of the accreted value of the notes. Any provision that aggravates or makes more onerous the obligations of the insolvent entity by virtue of the filing of a petition of bankruptcy or insolvency (whether voluntary or involuntary) is considered invalid and may be deemed as if not included in the agreement under Mexican Law. It is believed that there are no Mexican precedents in insolvency or bankruptcy addressing this matter and there exists significant uncertainty as to how a Mexican court would measure the claims of holders of the notes.
Even though the indenture includes a covenant, as described under “Description of Notes”, which provides that the Company, its parent companies and any subsidiary are obligated to vote any intercompany indebtedness, or provide consents or execute any restructuring agreement, in connection with any intercompany indebtedness, in any restructuring pursuant to any concurso mercantil or similar bankruptcy proceeding applicable to us, in a manner consistent with the vote, or the consent provided by the holders of the notes and other unaffiliated creditors of the same class as the notes, we cannot assure you that such covenant would be enforced by Mexican courts, in which case such subsidiaries, including BAF, could have a significant influence in such proceedings. BAF has granted loans to the Company for Ps.595 million, see “Related Party Transactions”, and, therefore, could influence any concurso mercantil or similar bankruptcy proceedings applicable to us if it does not comply with such covenant, as BAF may have a conflicting interest to that of the holders of the notes.
We cannot assure you that the credit ratings for the notes will not be lowered, suspended or withdrawn by the rating agencies.
The credit ratings of the notes may change after issuance. Such ratings are limited in scope, and do not address all material risks relating to an investment in the notes, but rather reflect only the views of the rating agencies at the time the ratings are issued. An explanation of the significance of such ratings may be obtained from the rating agencies. We cannot assure you that such credit ratings will remain in effect for any given period of time or that such ratings will not be lowered, suspended or withdrawn entirely by the rating agencies, if, in the judgment of such rating agencies, circumstances so warrant. Any lowering, suspension or withdrawal of such ratings may have an adverse effect on the market price and marketability of the notes.
The collection of interest on interest is not enforceable in Mexico.
Mexican law does not permit the collection of interest on interest and, therefore, the accrual of default interest on past due ordinary interest accrued in respect of the notes may be unenforceable in Mexico.
It is possible that the guarantees by our subsidiaries may not be enforceable.
All of our current subsidiary guarantors (except Famsa, Inc.) are Mexican variable capital corporations (sociedades anónimas de capital variable). The guarantees being given by the subsidiary guarantors provide a basis for a direct claim against the subsidiary guarantors. However, it is possible that such guarantees may not be enforceable. We have been advised by our special Mexican counsel, Mijares, Angoitia, Cortés y Fuentes, S.C., that the laws of Mexico may in some cases prevent their respective guarantees from being valid, binding and enforceable
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against such subsidiary guarantors in accordance with their terms. However, in the event that such a subsidiary guarantor is declared insolvent or bankrupt, the guarantee may be deemed to have been a fraudulent transfer and declared void if such subsidiary guarantor failed to receive fair consideration or reasonably equivalent value in exchange for such guarantee. In addition, under Mexican Bankruptcy Law, if we or any of the subsidiary guarantors are judicially declared insolvent or bankrupt, our obligations under the notes and each of such subsidiary guarantors’ obligations under its guarantee will be subordinated to secured creditors and certain statutorily preferred creditors, such as those holding labor, tax and social security related claims, which will have preference over any other claims, including claims by any investor in respect of the notes or such guarantees. Furthermore, we have been advised that under Mexican laws, the validity of each guarantee is subject to the existence and validity of the obligation being guaranteed. As a consequence thereof, its enforcement is not independent or irrespective of such obligation being guaranteed. Furthermore, under Mexican law, a subsidiary guarantor may be released from its obligations under the guarantee if (i) the holder of the note gives us an extension for payment under the notes without the express consent of such subsidiary guarantor, or (ii) the company waives any cause that would otherwise release the company of its obligations under the notes, including expirations or statute of limitation provisions.
The obligation of each subsidiary guarantor (including Famsa, Inc.) may be subject to review under United States state or federal fraudulent transfer laws. Under such laws, if a court in a lawsuit by an unpaid creditor or representative of creditors of a subsidiary guarantor, such as a trustee in a bankruptcy of such subsidiary guarantor as debtor in possession, were to find that at the time such obligation was incurred such subsidiary guarantor, among other things, (a) did not receive fair consideration or reasonably equivalent value therefore and (b) (i) was insolvent, (ii) was rendered insolvent, (iii) was engaged in a business or transaction for which its remaining unencumbered assets constituted unreasonably small capital or (iv) intended to incur or believed that it would incur debts beyond its ability to pay such debts as they matured, such court could avoid such subsidiary guarantor’s obligation and direct the return of any payments made thereunder to such subsidiary guarantor or to a fund for the benefit of its creditors. Moreover, regardless of the factors identified in the foregoing clauses (i) through (iv), such court could avoid such obligation and direct such repayment if it found that the obligation was incurred with an intent to hinder, delay or defraud such subsidiary guarantor’s creditors.
The measure of insolvency for purposes of the preceding paragraphs will vary depending upon the law of the jurisdiction being applied. Generally, however, an entity would be considered insolvent if it is unable to pay or satisfy its obligations as they become due, the sum of its debts is greater than all of its property (including collection rights) at a fair valuation or the present fair salable value of its assets is less than the amount that will be required to pay its probable liability on its existing debts as they become absolute and matured. There can be no assurance as to what standard a court would apply to determine whether any of the guarantors was insolvent upon giving effect to the incurrence of the guarantees or how a court would determine the guarantors’ adequate capitalization or ability to pay debts as they mature. If the guarantees become unenforceable under the conditions described above, the notes would effectively be subordinated to all liabilities, including trade payables, of the subsidiary guarantors. On December 31, 2012, the subsidiary guarantors had total balance sheet liabilities of Ps.735.0 million, excluding indebtedness to other subsidiaries of the Company.
The laws of New York may not be recognized in a judicial proceeding in Mexico.
Although the choice of the laws of New York governing the notes would be recognized by the competent courts of Mexico, in the case of a dispute before a Mexican court, the Mexican court would only recognize the substantive laws of New York and would apply the laws of Mexico with respect to procedural matters. The application of any foreign law in Mexico is subject to Mexican procedural rules of evidence. Further, a Mexican court may refuse to apply and/or to enforce provisions governed by the laws of New York if the respective provision is contrary to the public policy (órden público) of Mexico.
The consolidated financial information included in this offering memorandum may be of limited use in assessing the financial position of the subsidiary guarantors.
The consolidated financial information included in this offering memorandum includes the financial information for our non-guarantor subsidiaries. As of December 31, 2012, our non-guarantor subsidiaries had net assets of Ps. 10,634 million (accounting for 49.04% of our consolidated net assets) and for the year ended December 31, 2012, our non-guarantor subsidiaries had EBITDA of Ps. 2,377 million (accounting for 51.28% of our
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consolidated EBITDA). As a result, our non-guarantor subsidiaries account for over 25% of our consolidated net assets and EBITDA and may be of limited use in assessing the financial position of the subsidiary guarantors.
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USE OF PROCEEDS
We expect to receive net proceeds of approximately U.S.$244.2 million after the initial purchasers’ discounts and commissions and the payment of offering expenses payable by us from the issuance of the notes. We intend to use the net proceeds from this offering (i) to pay the consideration for the Tender Offer and Consent Solicitation and accrued and unpaid interest on the Senior Notes due 2015, (ii) to redeem any Senior Notes due 2015 that are not purchased under the Tender Offer and Consent Solicitation in accordance with the terms of the indenture governing the Senior Notes due 2015, as amended following the Consent Solicitation, if applicable, (iii) to pay fees and expenses incurred in connection with the Tender Offer and Consent Solicitation, and (iv) to the extent any proceeds remain, for general corporate purposes.
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EXCHANGE RATES
The following table sets forth, for the periods indicated, the period-end, average, high and low free market rates published by Banco de México in the Official Gazette of Mexico expressed in Pesos per U.S. Dollar. No representation is made that the Peso amounts referred to in this offering circular could have been or could be converted into U.S. Dollars at any particular rate or at all. Unless otherwise indicated, U.S. Dollar amounts that have been converted from Pesos have been so converted at an exchange rate of Ps.12.9658 to U.S.$1.00, the exchange rate published by Banco de México in the Official Gazette of Mexico to be effective on December 31, 2012.
Banco de México Rate(1) Period End Average(2) Low High Year Ended December 31, 2008 ...... 13.83 13.42 13.12 13.83 2009 ...... 13.04 13.55 12.60 15.37 2010 ...... 12.35 12.63 12.16 13.18 2011 ...... 13.98 12.43 11.50 14.24 2012 ...... 12.97 13.17 12.63 14.39
Month Ended November 2012 ...... 12.93 13.07 12.93 13.25 December 2012 ...... 12.97 12.87 12.72 13.01 January 2013 ...... 12.71 12.70 12.59 12.80 February 2013 ...... 12.78 12.72 12.63 12.87 March 2013 ...... 12.36 12.52 12.35 12.80 April 2013 ...... 12.15 12.21 12.07 12.34 May 2013 (through May 13) ...... 12.14 12.09 11.98 12.18
(1) Source: Banco de México.
(2) The average annual rates were calculated by using the average of the exchange rates as of the end of the month and the average monthly rates were calculated by using the daily average of the exchange rates on each day during the relevant period.
Devaluation of the Peso in relation to the U.S. Dollar will adversely affect our ability to meet our U.S. Dollar-denominated obligations, including the notes. See “Risk Factors—Risk Factors Related to Mexico— Fluctuations in the exchange rate between the Peso and the U.S. Dollar could lead to an increase in our cost of financing and have an adverse effect on our financial condition and results of operations.”
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CAPITALIZATION
The following table sets forth our cash and cash equivalents and consolidated capitalization as of March 31, 2013, derived from our unaudited consolidated financial statements prepared in accordance with IFRS (i) on a historical basis and (ii) as adjusted to give effect to this offering of the notes and the application of the net proceeds in the manner described under “Use of Proceeds.” This table should be read together with Annex A to this offering circular beginning on page A-1.
Solely for the convenience of the reader, Peso amounts appearing in the table below have been converted to U.S. Dollar amounts at an exchange rate of Ps.12.36 to U.S.$1.00, the exchange rate published by Banco de México in the Official Gazette of Mexico effective on March 31, 2013. The exchange rate conversions contained in this offering circular should not be construed as representations that the Peso amounts actually represent the U.S. Dollar amounts presented or could be converted into U.S. Dollars at the rate indicated as of the dates mentioned herein or at any other rate.
As of March 31, 2013 Actual As Adjusted (millions of Pesos) (millions of USD) (millions of Pesos) (millions of USD)
Cash and cash equivalents ...... 2,223.5 179.9 2,614.7 211.5 Short-term debt (including current portion of long-term debt) ... 3,877.3 313.7 3,877.3 313.7 Long-term debt ...... 2,441.0 197.5 3,059.1 247.5 Total stockholders’ equity ...... 8,518.9 689.2 8,518.5 689.2
Total capitalization...... 14,837.2 1200.4 15,454.9 1250.4
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SELECTED CONSOLIDATED FINANCIAL INFORMATION
The following information has been derived from and should be read in conjunction with the Financial Statements, together with the related auditor’s report and notes thereto, which have been prepared in accordance with IFRS. The Financial Statements and other financial information included in this offering circular, unless otherwise specified, are stated in Mexican Pesos and include the consolidated results of all of our subsidiaries, including our non-guarantor subsidiaries, such as BAF. For unaudited selected consolidated financial information as of March 31, 2013 and for the three month periods ended March 31, 2013 and 2012 and a discussion of our financial results for the three month periods ended March 31, 2013 and 2012, see Annex A to this offering circular beginning on page A-1. Results of operations for the interim periods are not necessarily indicative of the results that might be expected for any other interim period or for an entire year.
Until 2011, we issued our consolidated financial statements in conformity with MFRS. In accordance with IFRS 1 “First-time adoption of IFRS” we considered January 1, 2011 as our IFRS transition date and January 1, 2012 as our IFRS adoption date. As a result, the Financial Statements have been prepared in accordance to IFRS as issued by the IASB. The amounts included in the Financial Statements for the year ended December 31, 2011 have been reconciled in order to be presented under the same standard and criteria applied for the year ended December 31, 2012.
The U.S. Dollar amounts provided below are conversions from the Peso amounts, solely for the convenience of the reader. The U.S. Dollar amounts for the year ended December 31, 2012 have been converted using the exchange rate of Ps.12.9658 to U.S.$1.00, published by Banco de México in the Official Gazette of Mexico to be effective on December 31, 2012. See “Exchange Rates” for information regarding the rates of exchange between the Peso and the U.S. Dollar for the periods specified therein. These conversions should not be construed as representations that the Peso amounts actually represent such U.S. Dollar amounts or could be converted into U.S. Dollars at the rate indicated or at any other rate.
For additional information regarding financial information presented in this offering circular, see “Presentation of Financial and Other Information.”
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Income Statement and Balance Sheet Data
Year ended December 31, Jan 01, 2011 2011 2012 2012 (millions of Income Statement Data: (millions of Pesos) USD) Total revenues — 13,865.7 14,123.5 1,089.3 Cost of sales — (7,571.1) (7,536.1) (581.2) Gross profit — 6,294.7 6,587.4 508.1
Selling expenses — (3,024.0) (3,227.0) (248.9) Administrative expenses — (2,146.2) (1,956.3) (150.9) Other income (expenses)-net — (46.3) 71.0 5.5 — (5,216.4) (5,112.3) (394.3)
Operating profit — 1,078.2 1,475.1 113.8 Financial expenses — (777.3) (722.3) (55.7) Financial income — 1.4 64.0 4.9 Financial expenses, net — (775.9) (658.4) (50.8) Profit before income tax — 302.3 816.7 63.0 Income tax — 149.5 107.3 8.3 Profit before discontinued operations — 451.7 924.1 71.3 Discontinued operations — (221.8) (598.5) (46.2) Consolidated net income — 230.0 325.6 25.1 Net income attributable to non-controlling interest — 2.5 2.7 0.2 Net income attributable to controlling interest — 227.4 322.9 24.9
Balance Sheet Data: Cash and cash equivalents 937.2 1,261.5 1,528.7 117.9 Trade receivables-net 14,696.7 17,217.8 18,546.4 1,430.4 Inventories 2,216.0 2,009.8 1,950.7 150.4 Total current assets 19,625.0 22,276.3 23,874.4 1,841.3 Property, leasehold improvements and furniture and equipment, net 2,561.7 2,486.3 2,370.0 182.8 Total non-current assets 5,109.1 5,109.8 5,195.5 400.7 Total assets 24,734.1 27,386.1 29,069.9 2,242.0 Demand deposits and time-deposits 7,697.1 7,528.9 8,382.5 646.5 Short-term debt 2,743.5 2,426.6 2,583.8 199.3 Trade payables 1,515.0 1,483.1 1,562.6 120.5 Total current liabilities 13,193.8 12,516.2 13,398.2 1,033.3 Time-deposits 1,210.2 2,907.2 3,616.8 278.9 Long-term debt 2,423.0 3,750.7 3,563.6 274.8 Total non-current liabilities 3,867.1 6,855.4 7,382.0 569.3 Total liabilities 17,060.8 19,371.6 20,780.2 1,602.7 Total stockholders’ equity 7,673.3 8,014.5 8,289.7 639.4 Total liabilities and stockholders’ equity 24,734.1 27,386.1 29,069.9 2,242.0
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Other Operating Data
Year ended December 31, Jan 01, 2011 2011 2012 2012 (millions of (millions of Pesos) USD)
Selected Segment Financial Data: Segment Total Revenues: Operations in Mexico — 12,030.6 12,353.3 952.8 Operations in the U.S. — 1,731.5 1,715.2 132.3 Other businesses(1) — 1,030.0 949.0 73.2 Total segment total revenues — 14,792.1 15,017.5 1,158.2 Intersegment operations — (926.4) (894.0) (69.0) Total consolidated total revenues — 13,865.7 14,123.5 1,089.3
Segment Operating Profit Before Depreciation and Amortization(2): Operations in Mexico — 1,519.9 1,668.0 128.6 Operations in the U.S. — (2.9) 121.7 9.4 Other businesses — (62.7) 8.7 0.7 Total segment — 1,454.3 1,798.4 138.7 Intersegment operations — (25.4) (8.9) (0.7) Total consolidated — 1,428.9 1,789.5 138.0
Other Financial Data: Credit sales — 11,077.8 11,468.8 884.5 Accounts receivable — 18,855.0 20,250.6 1,561.8 Provision for doubtful accounts — 1,389.5 1,542.1 118.9 Allowance for doubtful accounts — 966.4 1,035.2 79.8 Recoveries — 1,271.7 1,473.3 113.6 Allowance for doubtful accounts as a percentage — 5.1 5.1 — of total accounts receivable Recoveries as a percentage of total — 6.7 7.3 — accounts receivable
Growth and Profitability Ratios (Unaudited): Total revenues growth — — 1.9% — Same-store sales growth — 1.3 1.6 — Gross margin — 45.4% 46.6% — Adjusted EBITDA margin(4) — 14.1% 16.8% — Operating profit margin — 7.8% 10.4% — Net income margin — 1.6% 2.3% —
Credit Ratios (Unaudited):
Total debt as percentage of total capitalization(5) — 43.5 42.6 — Total debt to operating profit — 5.7 4.2 — Net debt to operating profit — 4.6 3.1 —
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Total debt to adjusted EBITDA(3) — 3.2 2.6 — Net debt to adjusted EBITDA(3) — 2.5 1.9 — Adjusted EBITDA minus capital expenditures to gross interest expense(3) — 2.1 3.0 —
Other Operating Data (Unaudited): Number of retail stores 410 401 380 — Total store area (square meters) 541,387 539,918 487,923 — Same-store sales growth (percentage) (5) — 1.3% 1.6% — Mexican retail sales per square meter(6) — 28.5 29.2 — U.S. retail sales per square meter(6) — 26.9 26.6 —
Banco Famsa Deposits (Unaudited)(7): Saving deposits (interest bearing) 4,929.1 2,830.8 2,191.4 169.0 Checking accounts (non-interest bearing) 121.2 208.5 314.1 24.2 Time-deposits: From the general public 3,857.0 7,396.8 9,493.7 732.2 Total Bank Deposits 8,907.3 10,436.1 11,999.3 925.5 Banking Branches 283 288 304 —
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(1) Comprised of our wholesale, furniture manufacturing and footwear catalog businesses in Mexico.
(2) Operating Profit (Loss) Before Depreciation is used as a measure of our segment financial performance that we believe indicates profitability in continuing business activities. Operating Profit (Loss) Before Depreciation and Amortization is different from earnings before interest, taxes, depreciation, and amortization (EBITDA), which reflects adjustments to net income instead of adjustments to operating profit.
(3) Adjusted EBITDA is a non-GAAP financial measure computed under IFRS. Adjusted EBITDA as such term is used in this offering circular consists of adding to the operating profit; interest expense on bank deposits, depreciation and amortization. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—EBITDA and Adjusted EBITDA Reconciliation.”
(4) Adjusted EBITDA margin is calculated as Adjusted EBITDA divided by total revenues.
(5) Total Capitalization is calculated as total debt plus total stockholders´ equity.
(6) Average sales per square meter, in thousands of Pesos.
(7) For a description of BAF’s deposits see “Our Business—Banco Ahorro Famsa—Products and Services.”
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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the Financial Statements and notes thereto included elsewhere in this offering circular. Our consolidated annual financial statements as of and for the years ended December 31, 2012 and 2011, have been prepared in accordance with IFRS, which, as applied to us, differs in certain respects from U.S. GAAP. See “Presentation of Financial and Other Information.”
For unaudited selected consolidated financial information as of March 31, 2013 and for the three month periods ended March 31, 2013 and 2012 and a discussion of our financial results for the three month periods ended March 31, 2013 and 2012, see Annex A to this offering circular beginning on page A-1.
Results of operations for the interim periods are not necessarily indicative of the results that might be expected for any other interim period or for an entire year.
Overview
We are a leading company in the Mexican retail sector, satisfying families’ different purchasing, financing and savings needs. Our target market is the middle and low-middle income segments of Mexico’s population and the U.S. Hispanic population in certain U.S. states where we operate. Our Mexican retail operation offers furniture, electronics, household appliances, cellular telephones, computers, motorcycles, clothing and other durable consumer products, which are sold mainly through our Famsa stores. In the states of Texas and Illinois in the U.S., we offer furniture and appliances through our subsidiary Famsa, Inc. As of December 31, 2012, we owned and operated 380 stores and 11 distribution centers, including 355 stores in 82 cities throughout Mexico and 25 stores in Texas and Illinois. As of December 31, 2012, in Mexico we also operated 286 banking branches within Famsa stores and 18 independent banking branches. We believe that over the course of our 42-year history, we have built a strong brand name associated with a broad product offering at low prices and personalized customer service with convenient consumer financing programs. As of December 31, 2012, furniture, electronics and household appliances represented 38.8% of our consolidated total revenues.
In connection with our retail operations, we offer consumer financing to our customers who opt to purchase our products and services on credit, many of whom do not typically have access to other forms of financing, which provides them with an alternative method to purchase our products and services. In 2012, 81.2% of our retail sales were through our credit sales programs. To enhance our consumer financing business in Mexico, in 2007, we established our own commercial bank, BAF, allowing us to offer additional banking services to our customers, and generate a lower-cost, more stable form of short-term financing for our operations. According to the CNBV, as of December 31, 2012, BAF operated one of the ten largest banking branch networks in Mexico, with 286 banking branches within Famsa Mexico stores and 18 independent banking branches, and managed an aggregate amount of 2.9 million saving and credit accounts.
The financial statements of Famsa USA, which are prepared in accordance with U.S. GAAP, and the financial statements of BAF, which are prepared in accordance with accounting standards and practices established by the CNBV, are both conformed to IFRS for consolidation purposes.
Our total revenues were Ps.13,866 million for the year ended December 31, 2011 and Ps.14,124 million for the year ended December 31, 2012. Our U.S. operations represented 12.1% of consolidated total revenues during 2012 with 13.2% of the total retail space. Our Adjusted EBITDA totaled Ps.1,955 million for the year ended December 31, 2011 and Ps.2,379 million for the year ended December 31, 2012. Our net assets were Ps.8,015 million for the year ended December 31, 2011 and Ps.8,290 million for the year ended December 31, 2012.
Critical Accounting Policies and Estimates
Until 2011, we issued our consolidated financial statements in conformity with MFRS. In accordance with IFRS 1 “First-time adoption of IFRS” we considered January 1, 2011 as our IFRS transition date and January 1, 2012 as our IFRS adoption date. As a result, the Financial Statements have been prepared in accordance to IFRS as issued by IASB. The amounts included in the Financial Statements for 2011 have been reconciled in order to be presented under the same standard and criteria applied in 2012.
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In addition, the preparation of these consolidated financial statements requires the use of estimates, judgments and assumptions that affect the reported amounts of assets and liabilities at the balance sheet date as well as the reported amounts of revenues and expenses for the periods presented. Actual results may differ from these estimates, judgments and assumptions.
An accounting estimate in the Company’s consolidated financial statements is a critical accounting estimate if it requires the Company to make assumptions about matters that are highly uncertain at the time the accounting estimate is made, and either different estimates that the Company reasonably could have used in the current period, or changes in the accounting estimate that are reasonably likely to occur from period to period, would have a material impact on the presentation of the Company’s financial condition, cash flows or results of operations.
This section contains a discussion of our critical accounting policies so as to provide a better understanding of our operating results.
Allowance for Doubtful Receivables
We maintain an allowance for doubtful receivables related to customer receivables for estimated losses resulting from our customers’ inability to make timely payments, including interest on finance receivables. The amount of our allowance for doubtful receivables is based on whether there is objective evidence of impairment as a result of one or more events that occurred after the initial recognition of the receivable (a “loss event”) and if that loss event (or events) has an impact on the estimated future cash flows of the receivable that can be reliably estimated. The objective evidence can be based in various factors, including the length of past overdue payments, the current business environment, past practices (represented as a percentage of sales), historical experience and the estimated recoverable value of the item sold, since, in some cases, the item is pledged as collateral under the applicable sales contract.
Although we believe that our allowance for doubtful receivables is adequate and sufficient to cover any losses associated with our accounts receivable, in the future we may be required or may deem it necessary to increase the amount of such provision. The adequacy and sufficiency of our allowance for doubtful receivables in the future could be affected by changes in our consumer lending policies, the profiles of our customers and the prevailing macroeconomic conditions both in Mexico and the United States. Any increase in our allowance for doubtful receivables may have an adverse effect on our results of operations and financial condition.
Allowance for Income Taxes
Our income tax expense includes both our accrued and deferred income tax obligations. Deferred income taxes represent our future income tax obligations or credits due to temporary differences between the tax and accounting treatment of certain balance sheet items, including our allowance for doubtful receivables, buildings, leasehold improvements and furniture and equipment and sales on credit. We report these temporary differences and unrealized tax losses or credits as deferred income tax assets and liabilities on our balance sheet. We report the corresponding change in the amount of our deferred income tax assets or liabilities as a charge or credit in our income statement depending on their nature.
For purposes of determining the deferred tax, the Company prepares tax projections to determine whether the Company will pay income tax or flat rate tax, and then determines deferred income tax or deferred flat tax, as appropriate.
Depreciation and Impairment of Property, Leasehold Improvements and Furniture and Equipment
Depreciation is calculated in accordance with the straight-line method based on the estimated useful life of the relevant assets. Any change in circumstances, including any change in our business model, could give rise to differences between the actual and estimated useful lives of such assets. In those instances where we determine it necessary to shorten the useful life of a given item of property, leasehold improvements and furniture and equipment, we depreciate the portion of the net book value of such item that exceeds its recoverable value over the course of its remaining adjusted useful life, thus increasing our depreciation expense. We review the estimated useful lives and residual values of property, leasehold improvements and furniture and equipment at the end of each annual period.
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We review property, leasehold improvements and furniture and equipment for impairment whenever events or changes in circumstances indicate that the related carrying amounts may not be recoverable. Determining whether impairment has occurred typically requires various estimates and assumptions, including determining which cash flows are directly related to the potentially impaired asset, the useful life over which cash flows will occur, their amount and the asset’s residual value, if any. In turn, measurement of an impairment loss requires a determination of fair value, which is based on the best information available. We use internal discounted cash flow estimates and independent appraisals as appropriate to determine fair value. We derive the required cash flow estimates from our historical experience and our internal business plans and apply an appropriate discount rate.
Revenue recognition, installment sales
We apply judgment to identify the applicable discount rate to determine the present value of installment sales. To determine the discounted cash flows, we use an imputed interest rate, considering the rate that can be determined better from: (i) the prevailing rate in the market for a similar instrument available for our customers with a similar credit rating or (ii) the interest rate that equals the nominal value of the sale, properly discounted to the cash price of the goods sold.
When making our judgment, we consider the interest rates used by the principal financial institutions in Mexico to fund programs of installment sales.
Employee Benefits
We determine the cost of employee benefits that qualify as defined benefit plans using independent actuarial valuations. The valuations involve actuarial assumptions about discount rates, future salary increases, employee turnover rates and mortality rates, among other things. Any changes in these assumptions will impact the carrying value of our pension obligations. Due to the long-term nature of these plans, such estimates are subject to a significant amount of uncertainty.
Overview of our Results of Operations
Revenues
We generate revenues from our retail operations primarily through the sale of recognized brand name products (such as furniture, electronics, household appliances, cellular telephones, computers, motorcycles, clothing and other durable consumer products), as well as the issuance of personal loans and other financial services offered through BAF.
Revenue from retail sales is recognized upon completion of the revenue recognition process, which occurs when merchandise is shipped or delivered to customers in accordance with the terms of a sales contract, when there is a fixed or determinable sales price, when title and risk of loss have been transferred, and when collectability is reasonably assured. Most of these conditions are satisfied at the time of delivery to customers and upon issuance of the sales receipt.
We offer our customers an option to pay in installments (weekly, bi-weekly or monthly) over time rather than in cash at the time of purchase. As of December 31, 2012, sales under our credit sales program accounted for 81.2% of our total sales.
In accordance with IAS 18, “Revenue”, the Company recognizes the following as revenues: installment sales at the present value of the consideration using the imputed interest rate and sales of life insurance are recorded net; that is, the associated cost is recognized.
In Mexico, the retail prices of our products depend on the market trends of the diverse type of products offered. In addition, our installment program considers various factors, such as the repayment period, the customer’s credit history and the type of product. The actual installment payments result from the division of the retail price by the number of payments within the desired repayment period. Installment payments displayed at our stores are typically calculated using 12 or 18-month terms. As a result, sales on credit generate gross margins above those yielded by our cash sales.
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In the United States, the retail price of our merchandise sold on credit is determined based on the suggested retail price plus a finance charge that is reviewed periodically. Cash purchases at our U.S. stores generally are not subject to discounts.
Our total revenues per square meter reflect the performance of our Famsa stores. Our sales area is measured in square meters and serves as a parameter for the calculation of our growth in terms of our total revenues. The following table shows our stores’ sales area and performance.
Year ended December 31, 2011 2012 Stores in Mexico 352 355 Stores in U.S. Texas 25 25 Stores in U.S. West 24 0 Total number of stores 401 380
Total sales area in Mexico(1) 422,646 423,489 Total sales area in U.S. Texas(1) 64,434 64,434 Total sales area in U.S. West(1) 52,838 0 Total sales area(1) 539,918 487,923
(millions of Pesos) Mexican revenues per square meter(2) 28.5 29.2 U.S. revenues per square meter (2)(3) 26.9 26.6 Famsa growth in same-store revenues 1.3% 2.4% Mexico growth in same-store revenues 5.8% 3.4% U.S. growth in same-store revenues(3) (14.5%) (4.0%)
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(1) In square meters.
(2) In thousands of Pesos.
(3) Financial information for the years ended December 31, 2011 and 2012 includes only sales per square meter in Texas and Illinois, the two U.S. states in which we have ongoing operations.
We provide revenues by category in the table below.
Year ended December 31, 2012 2011 (millions of Pesos) Interest earned from customers 3,677 2,883 Furniture 2,394 2,356 Electronics 1,690 1,949 Appliances 1,394 1,530 Mobile phones 956 1,014 Computer equipment 832 953 Motorcycles 576 432 Clothing and footwear 541 624 Seasonal articles (air conditioners, heaters, etc.) 389 398 Income from commercial banking 175 108 Sport articles 178 149 Small appliances 147 149 Children’s articles and accessories 64 74
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Other (1) 1,111 1,245 14,124 13,866
In 2012, we decreased the total number of our retail stores by 21 retail stores, or (5.2)%, to 380 total retail stores as of December 31, 2012, from 401 total retail stores as of December 31, 2011. We also registered a decrease of 9 total retail stores, or 2.2% to 401 total retail stores as of December 31, 2011, from 410 total retail stores as of December 31, 2010. Our total store area decreased by 51,995 square meters in 2012, or (9.6)%, to 487,923 square meters as of December 31, 2012, from 539,918 square meters as of December 31, 2011, due mainly from the orderly exit from the West region in the United States, which comprised the closure of 24 stores located in the states of California, Arizona and Nevada. Furthermore, we registered a decrease of 1,469 square meters in 2011, or (0.3)%, to 539,918 square meters as of December 31, 2011, from 541,387 square meters as of December 31, 2010.
Mexican retail sales per square meter increased Ps.700 or 2.5%, to Ps.29,200 in 2012, from Ps.28,500 in 2011, as a result of increasing efforts to spur demand. U.S. retail sales in Pesos regarding its continuous operations in Texas per square meter decreased Ps.300, or (1.1)%, to Ps.26,600 in 2012, from Ps.26,900 in 2011, due to continuing pressure on sales growth during the first eight months of 2012.
Seasonality
We recognize a substantial percentage of our total revenues across all of our business segments in the second and fourth quarters of the year as a result of the increase in consumer spending associated with Mother’s Day, Buen Fin and the Christmas holiday season. Unlike our revenues, our operating costs (excluding the cost of the merchandise sold), distribution costs and a portion of our marketing and advertising expenses are relatively constant throughout the year and therefore, generally do not correlate with our sales percentage. Accordingly, our financial performance and results of operations are influenced by these seasonal factors.
Cost of Sales
The main component of our cost of sales is the acquisition cost of the merchandise offered by our Famsa Mexico and Famsa USA stores and the merchandise we sell at wholesale prices. IFRS provide that the cost of inventories includes all costs derived from their acquisition and transformation. Import duties, transportation, commercial discounts, rebates and other similar items affect the acquisition cost. Furthermore, because of our transition from MFRS to IFRS, for the year ended December 31, 2012, the allowance for doubtful accounts is now a component of cost of sales. In addition, the Company decreased inventories affecting cost of sales.
According to IAS 19 (as amended) the actuarial gains and losses should be recognized in financial expenses, net as incurred. Therefore actuarial gains for the year ended December 31, 2011 were reclassified reducing administrative expenses and increasing actuarial gains in financial expenses, net by the same amount.
We recognize our cost of sales as of the date of sale of the relevant products.
Operating Expenses
The main components of our operating expenses, which comprise selling expenses and administrative expenses, are employees’ salaries and benefits, depreciation, rent, marketing and advertising expenses, and service and maintenance costs.
As of December 31, 2012, we had more than 370 short and long-term lease agreements in place. Leased properties are used primarily for our stores and as office space and warehouse facilities. As of December 31, 2011 and December 31, 2012, our total rental expense amounted to Ps. 728 million and Ps. 763 million, respectively.
Financial Expenses, net
Our financial expenses, net has a material effect on our financial statements during periods of high inflation or fluctuation in the exchange rate of the Peso against the U.S. Dollar. Our financial expenses, net consists of
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interest income, interest expense, foreign exchange gains or losses attributable to our foreign-denominated monetary assets and liabilities and gains or losses in monetary position from the holding of monetary assets and liabilities exposed to inflation. Our foreign exchange position is affected by our foreign-denominated assets and liabilities. We recognize a foreign exchange gain or loss in the event of an increase or decrease in the exchange rate of the Peso against the currencies in which our assets and liabilities are denominated.
Income Tax
The main components of our income tax are Mexican income tax and U.S. federal and state income taxes. Income tax rates vary from one country or state to another and are subject to changes in the tax laws of each such country or state. Our income tax includes both our accrued and deferred taxes and we use the comprehensive asset and liability method to determine the deferred tax asset or liability, and related income/expense for deferred income taxes, for all temporary differences between the carrying values for financial reporting and tax values of assets and liabilities.
Operating Results by Geographic Segment
Famsa manages and evaluates its continuing operations through three business segments: Famsa Mexico (retail stores, personal car financing and financial sector in Mexico), Famsa USA (foreign retail stores) and other businesses in Mexico (wholesale, manufacturing of furniture and the footwear catalog business). The Company controls and evaluates its continuing operations on a consolidated basis since the goods and services mix and the target markets are similar. Its operations are carried out through its subsidiary companies.
The following table shows our total revenues by geographic segment, as a percentage of our total revenues, and our Adjusted EBITDA by geographic segment, for the years ended December 31, 2011 and 2012.
Year ended December 31, 2011 2012 2012 (millions (millions of Pesos) of USD) % % Total Revenues by Segment: Famsa Mexico 12,030.6 86.8 12,353.3 87.5 952.8 Famsa USA 1,731.5 12.5 1,715.2 12.1 132.3 Other 1,030.0 7.4 949.0 6.7 73.2 Subtotal 14,792.1 106.7 15,017.5 106.3 1,158.2 Inter-segment sales (926.4) (6.7) (894.0) (6.3) (69.0) Total revenues 13,865.7 100.0 14,123.5 100.0 1,089.3 Adjusted EBITDA: Famsa Mexico 2,046.3 104.7 2,257.8 94.9 174.1 Famsa USA (2.9) (0.1) 121.7 5.1 9.4 Other (62.7) (3.2) 8.7 0.4 0.7 Subtotal 1,980.7 101.3 2,388.2 100.4 184.2 Inter-segment EBITDA (25.4) (1.3) (8.9) (0.4) (0.7) Total EBITDA 1,955.3 100.0 2,379.3 100.0 183.5
Adjusted EBITDA Reconciliation
Adjusted EBITDA is a non-GAAP financial measure computed under IFRS. Adjusted EBITDA as such term is used in this offering circular consists of adding to the operating profit; interest expense on bank deposits, depreciation and amortization..
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In accordance with IFRS, the effect of discontinued operations has been separated from continuing operations and is presented as an extraordinary item before net income. Thus, in order to measure Adjusted EBITDA for the years ended December 31, 2011 and 2012, net income also excludes income (loss) from discontinued operations.
We believe that Adjusted EBITDA can be useful to facilitate comparisons of operating performance between periods and with other companies in our industry, but it has the following material limitations: (i) it does not include interest expense, which, because we have borrowed money to finance some of our operations, is a necessary and ongoing part of our costs and has assisted us in generating revenue; (ii) it does not include taxes, which are a necessary and ongoing part of our operations; and (iii) it does not include depreciation, which, because we must utilize property and equipment in order to generate revenues in our operations, is a necessary and ongoing part of our costs.
We provide a reconciliation of operating profit to Adjusted EBITDA in the table below.
Year ended December 31, 2011 2012 2012 (millions of (millions of Pesos) USD) Consolidated net income 227.4 322.9 24.9 Depreciation and amortization 350.7 314.4 24.2
Interest expenses on bank deposits & financial 1,200.5 1,312.1 101.2 expenses, excluding foreign exchange loss, net Income tax (149.5) (107.3) (8.3) Interest income (1.4) (1.8) (0.1) Foreign exchange loss, net 103.2 (62.2) — Net income attributable to non-controlling interest 2.5 2.7 0.2 Discontinued operations 221.8 598.5 46.2 Adjusted EBITDA 1,955.3 2,379.2 183.5
Results of Operations for the Year Ended December 31, 2012, compared with our Results of Operations for the Year Ended December 31, 2011 and Balance Sheet Data as of December 31, 2012 compared with December 31, 2011
Our consolidated annual financial statements as of and for the years ended December 31, 2011 and 2012, which have been prepared in accordance with IFRS.
Income Statement
Year ended December 31, 2011 2012 2012 (millions of Pesos) (millions of Income Statement Data: USD) Total revenues 13,865.7 14,123.5 1,089.3 Cost of sales (7,571.1) (7,536.1) (581.2) Gross profit 6,294.7 6,587.4 508.1 Selling expenses (3,024.0) (3,227.0) (248.9) Administrative expenses (2,146.2) (1,956.3) (150.9) Other income (expenses)-net (46.3) 71.0 5.5 (5,216.4) (5,112.3) (394.3) Operating profit 1,078.2 1,475.1 113.8
Financial expenses (777.3) (722.3) (55.7)
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Financial income 1.4 64.0 4.9 Financial expenses, net (775.9) (658.4) (50.8)
Profit before income tax 302.3 816.7 63.0 Income tax 149.5 107.3 8.3 Profit before discontinued operations 451.7 924.1 71.3 Discontinued operations (221.8) (598.5) (46.2) Consolidated net income 230.0 325.6 25.1 Net income attributable to non-controlling interest 2.5 2.7 0.2 Net income attributable to controlling interest 227.4 322.9 24.9
Total Revenues
During the year ended December 31, 2012, our total revenues increased by 1.9%, to Ps.14,124 million, from Ps.13,866 million during the year ended December 31, 2011, primarily as a result of Famsa Mexico’s sales growth posted during the period of April through December of the year ended December 31, 2012. Although same- store sales (which represent the sales of those of our stores that have been in operation longer than 12 months and isolate the effect of the Peso/U.S. Dollar exchange rate) of Famsa Mexico were lower in the first quarter of 2012 compared to the first quarter of 2011 for the reasons described below, consolidated same-store sales grew 1.6% during the year ended December 31, 2012, as compared to a growth rate of 1.3% in the year ended December 31, 2011, as a result of sales growth during the remainder of 2012.
Famsa Mexico reported total revenues of Ps.12,353 million during the year ended December 31, 2012, which represented a 2.7% increase in total revenues from Ps.12,031 million during the year ended December 31, 2011, primarily as a result of the combination of the progressive recovery of core categories, such as furniture, household appliances and cellular telephones, and the strength of personal loan origination. Same-store sales at Famsa Mexico grew 2.6% during the year ended December 31, 2012, compared to 5.8% during the year ended December 31, 2011. The unfortunate accident at one of our office buildings in Monterrey, that temporarily affected our credit approval capacity, combined with the highest comparable quarterly growth of the past few years in the first quarter of 2011, resulted in a 4.4% reduction in Famsa Mexico’s total revenues during the first three months of 2012.
Famsa USA’s total revenues and same-store sales in terms of U.S. Dollars both decreased by 4.0% during the year ended December 31, 2012. During the year ended December 31, 2012, total revenues in the Texas region fell 0.9%, to Ps.1,715 million from Ps.1,731 million during the year ended December 31, 2011. However, during the fourth quarter of 2012, for the first time since 2011, Famsa USA posted a growth in quarterly sales in the Texas region, with an 8.3% increase in same-store sales in the fourth quarter of the year ended December 31, 2012, compared to the fourth quarter of the year ended December 31, 2011. The growing recovery of Hispanic consumers and the rise in demand for some of our core product categories, such as household appliances and furniture, had a significant impact on sales volumes of Famsa USA during the fourth quarter of 2012.
Cost of Sales and Gross Profit
In 2012, several accounts were reclassified as a result of the MFRS to IFRS transition. Among them, interest expense related to bank deposits was reclassified to cost of sales and thus, cost of sales for the year ended December 31, 2012 was Ps.7,536 million, 0.5% below that of the year ended December 31, 2011.
During the year ended December 31, 2012, consolidated gross profit reached Ps.6,587 million, 4.7% above that of the year ended December 31, 2011. As a percentage of sales, gross profit grew 120 basis points from 45.4% in the year ended December 31, 2011 to 46.6% during the year ended Decemeber 31, 2012, largely driven by Famsa Mexico’s growth in credit sales, combined with the higher participation of personal loans and furniture in the consolidated sales mix.
Operating Expenses
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Consolidated operating expenses, which comprise selling expenses and administrative expenses, grew 0.3% during the year ended December 31, 2012, to Ps.5,183 million. During the year ended December 31, 2012, salaries and employee benefits and rent represented 59.9% of total operating expenses and the remaining amount corresponds to advertising, maintenance and depreciation expenses, among others. As a percentage of sales, operating expenses reached 36.7% during the year ended December 31, 2012, which represents a decrease of 60 basis points compared to the same period in 2011
Financial Expenses, net
Derived from the MFRS to IFRS transition, several accounts were reclassified in 2012. As a result, financial expenses, net now comprise interest expense related to bank debt, debt certificates, and factoring. Therefore, financial expenses, net of Grupo Famsa as of year ended December 31, 2012 were Ps.658 million, a 15.2% decrease compared to 2011.
The principal variation was in the foreign exchange loss of Ps.103 million posted in 2011, which changed to a moderate foreign exchange gain of Ps.62 million in the year ended December 31, 2012, as a result of the increased stability of the foreign exchange market and, more importantly, Grupo Famsa’s reduced asset position in U.S. Dollars through the operations of Famsa USA.
Year ended December 31, 2011 2012 (millions of Pesos) Financial expenses (777.3) (722.3) Financial income 1.4 64.0
Financial expenses, net (775.9) (658.4)
Income Tax
Our income tax decreased by 28.2%, from Ps.149 million during the year ended December 31, 2011 to Ps.107.0 million during 2012, primarily as a result of deferred income tax.
Net Income Attributable to Controlling Interest
Our net income attributable to controlling interest increased by 42.0%, from Ps.227 million during the year ended December 31, 2011 to Ps.323 million as of December 31, 2012. This increase results from an increase of 170.2% in profit before income tax as of December 31, 2012 compared to 2011. However, in the year ended December 31, 2012 the Company recorded a loss from discontinued operations corresponding to Famsa USA´s divestment process from the West region of Ps.598 million.
Trade Receivables - net
The balance of current and non-current trade receivables - net as of December 31, 2012, net of impairment allowances, grew 7.4% compared to the year ended December 31, 2011, totaling Ps.19,215 million. Derived from the MFRS to IFRS transition, this balance was segmented based on the timeframe of credits. Ps.18,546, or 96.5% of the total balance of trade receivables - net corresponds to credits with terms of less than one year. The remaining amount has been reclassified as a non-current asset.
Grupo Famsa applies stringent credit criteria to evaluate the credit quality of its trade receivables, both with respect to loans offered by BAF and the company’s consumer financing through its retail stores. The credit quality of trade receivables is assessed based on historical default rates by the company’s counterparties. Trade receivables – net as of December 31, 2012 and 2011 were Ps. 20,251 million and Ps. 18,855 million, respectively, including past due receivables of Ps. 2,086 million and Ps. 2,145 million, respectively.
Inventories
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The balance of inventories as of December 31, 2012 decreased by 2.9%, to Ps.1,951 million, when compared to Ps.2,010 million as of December 31, 2011, primarily as a result of the effective implementation of initiatives aimed at optimizing inventory levels without reducing our standards of service.
Net Debt and Bank Deposits
Net debt was Ps.4,619 million as of December 31, 2012, 6.0% less than the net debt posted as of December 31, 2011, largely reflecting an increase of 21.2% in the balance of cash and cash equivalents. Net Debt is calculated by the sum of long-term debt and short-term debt and subtracting cash and cash equivalents.
As of December 31, 2012, bank deposits totaled Ps.11,999 million, which was 15.0% above the balance as of December 31, 2011. In addition, BAF’s average cost of funding was 5.2% as of December 31, 2012. Bank deposits continue to offer an optimum source of funding for the loans made to our Mexican customers. The diverse financing products that make up BAF’s bank deposit base (demand deposits, short- and medium-term investments and certificates of deposit) mitigate the Company’s exposure to conventional credit market volatility and have also contributed significantly to reducing the Company’s consolidated cost of funding.
Total Stockholders’ Equity
The balance of total stockholders’ equity as of December 31, 2012 grew by 3.4%, to Ps.8,290 million, as compared to stockholders’ equity of Ps.8,015 million as of December 31, 2011, primarily due to an 8.5% increase in retained earnings, from Ps. 3,536 million as of December 31, 2011 to Ps. 3,837 million as of December 31, 2012, and an 18.2% increase in the reserve for repurchase of shares, which grew from Ps. 110 million as of December 31, 2011 to Ps. 130 million during the year ended December 31, 2012.
Liquidity and Capital Resources
General
Our primary sources of liquidity are the cash flow generated by our operating activities, BAF bank deposits, the funds available under our existing credit facilities and the issuance of debt instruments, such as our commercial paper programs in international and Mexican capital markets (certificados bursátiles). We require liquidity primarily to fund our working capital needs, including our sales on credit and the opening of new stores, and to satisfy our debt service obligations.
Changes in Financial Condition
The change in our resources from our operating activities during the year ended December 31, 2012 was primarily attributable to the increase in income before income tax.
The change in our resources from our financing activities during the year ended December 31, 2012 was attributable to a decrease in short-term debt and bank loans.
The change in our resources from our investing activities during the year ended December 31, 2012 was attributable to a decrease in investments in leasehold improvements and fixed assets.
Cash Flows
The following table shows the generation and use of cash for the years ended December 31, 2011 and 2012.
Year ended December 31, 2011 2012 2012 (millions of (millions of Pesos) USD) Net cash flow from operating activities 490.2 975.6 75.2 Net cash flow from (used in) financing activities 56.2 (522.5) -40.3 Net cash flow used in investing activities (233.6) (190.0) (14.7)
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Increase in net cash and cash equivalents 312.8 263.1 20.3
Net cash flow provided by operating activities for the year ended December 31, 2012 was Ps.975.6 million and net cash flow provided by operating activities for the year ended December 31, 2011 was Ps.490.2 million. The Ps.485.4 million increase in cash provided by operating activities in 2012 was primarily a result of the 170.5% increase in income before income tax, of Ps.514.4 million.
Net cash flow used by financing activities for the years ended December 31, 2012 was Ps.522.5 million and net cash flow provided by financing activities for the year ended December 31, 2011 was Ps.56.2 million, respectively. The Ps.578.7 million decrease in our cash provided by financing activities in 2012 was attributable to a decrease in short-term debt and bank loans, which fell 88.5%, from Ps.2,607.7 million in 2011 to Ps.300.0 million in 2012.
Net cash flow used in investing activities for the years ended December 31, 2012 and 2011 was Ps.190.0 million and Ps.233.6 million, respectively. The Ps.43.6 million, or 18.6%, decrease in our cash used in investing activities in 2012 was attributable mainly to a decrease in investments in leasehold improvements and fixed assets, which fell Ps.38.4 million, or 16.0%, from Ps.240.0 million in 2011, to Ps.201.6 million in 2012.
Capital Investments
During 2013, we plan to invest approximately Ps.350 million in leasehold improvements and the acquisition of furniture, equipment and IT systems, as well as to make investments in connection with the further development of our banking operations. Given the prevailing market conditions, the plan for our operations in Mexico contemplates the opening of at least 45 new business units, including 15 full-format stores (with a banking branch) and 30 independent banking branches in 2013. We are not planning on expanding our retail area in the United States during 2013.
In 2012 and 2011, we made capital investments of Ps.207.1 million and Ps.307.0 million, respectively, including:
leasehold improvements in the amount of Ps.25.4 million in 2012 and Ps.76.0 million in 2011;
the acquisition of furniture and equipment in the amount of Ps.18.1 million in 2012 and Ps.71.8 million in 2011; and
the acquisition of data-processing equipment in the amount of Ps.20.8 million in 2012 and Ps.25.6 million in 2011.
The following table contains a more detailed breakdown of our capital investments during the years ended December 31, 2011 and 2012.
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Year ended December 31, 2011 2012 (millions of Pesos)
Capital Investments Land ...... — 26.2 Construction in process ...... 54.0 65.9 Buildings and construction ...... 58.9 25.9 Leasehold improvements ...... 76.0 25.4 Furniture and equipment ...... 71.8 18.1 Transportation equipment ...... 20.7 24.8 Data-processing equipment ...... 25.6 20.8 Total capital investments ...... 307.0 207.1
Bank Deposits (Banco Ahorro Famsa)
During the year ended December 31, 2012, BAF’s deposit balance increased 15.0%, to Ps.11,999 million, from Ps.10,436 million during the year ended December 31, 2011, as a result of the continuing development of BAF. Bank deposits represent an increasing percentage of Famsa’s total net consolidated financing, having reached 72.2% as of December 31, 2012 and 68.0% as of December 31, 2011. For a description of BAF’s deposit products, see “Our Business—Banco Ahorro Famsa—Products and Services.”
The breakdown of BAF’s deposits as of December 31, 2011 and 2012 is as follows:
As of December 31, Jan 01, 2011 2011 2012 2012 (millions of (millions of Pesos) USD) Demand Deposits: Saving deposits (interest bearing) 4,929 2,831 2,191 169 Checking accounts (non-interest bearing) 121 208 314 Time deposits: From the general public 3,857 7,397 9,494 732
Total Bank Deposits 8,907 10,436 11,999 925
As of December 31, 2012 and 2011, and January 1, 2011, the maturities of time-deposits from the general public were as follows: As of December 31, Jan 01, 2011 2011 2012 (thousands of Pesos) From 1 to 179 days 1,425,810 2,412,515 2,731,489 From 6 to 12 months 1,221,053 2,077,142 3,145,478 From 1 to 2 years 1,210,154 2,907,190 3,616,767
Total 3,857,017 7,396,847 9,493,734
Debt
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As of December 31, 2011 and December 31, 2012, we had outstanding debt in the aggregate amount of Ps.6,177.3 million and Ps.6,147.4 million, respectively. Debt from affiliates is described under “Related Party Transactions.” The following table contains a summary of our third-party debt as of December 31, 2012.
As of December 31, Interest Jan 01, 2011 2011 2012 rate (*) (millions of Pesos)
Grupo Famsa Mexican pesos: Financial factoring (1): Financiera Bajío, S.A. SOFOM, ER 99,038 46,726 30,629 8.86% (b) Arrendadora y Factor Banorte, S.A. de C.V. SOFOM, ER 349,981 237,496 392,704 8.34% (b) IXE Banco, S.A. 99,908 79,032 — 8.32% (b) Banco Monex, S.A. — 49,895 124,845 7.86% (b) 548,927 413,149 548,178 Amounts drawn down from short-term revolving credit lines: Banco del Bajío, S.A. 100,000 100,000 — 8.80% (b) Banco Santander Serfin, S.A. 100,000 100,000 100,000 8.86% (b) Banorte, S.A. 149,995 199,795 199,795 8.06% (a) BBVA Bancomer S.A. — — 63,500 7.57% (a) CI Banco, S.A. — — 50,000 7.59% (b)
Issuance of debt certificates: Short-term (7) 1,671,725 1,000,000 1,000,000 7.49% (b) Long-term (2) (7) — 1,000,000 1,000,000 7.65% (b) 2,021,720 2,399,795 2,413,295
Dollar-denominated debt: Issuance of foreign debt:: 2,406,600 2,737,540 2,554,036 11.00% (a) Senior notes Rule 144A/Reg.S (3) — 557,904 518,632 8.50% (a) Euro-commercial paper (4) 2,406,600 3,295,444 3,072,668
Banco Ahorro Famsa, S.A. Institución de Banca Múltiple: Mexican peso-denominated debt: Nacional Financiera, S.N.C. (“NAFIN”) (5) 16,428 13,160 9,575 8.93% (b)
Famsa USA: Dollar-denominated debt: Deutsche Bank AG (6) 172,895 55,790 103,726 2.39% (a) Total debt 5,166,570 6,177,338 6,147,442 Short-term debt (2,743,542) (2,426,638) (2,583,831) Long-term debt 2,423,028 3,750,700 3,563,611
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(*) Nominal rates (a) fixed and (b) variable, as of December 31, 2012, except for Banco del Bajío, S.A. and IXE Banco, S.A., which rate is as of December 31, 2011. Interests are accrued monthly.
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(1) The Company entered into factoring credit lines contracts with suppliers. Interest is calculated applying to the discounted amount the rates that financial institutions apply for these types of transactions, according to the discount period. These liabilities are settled in an average period of 110 days. The relevant characteristics of each factoring credit line are presented below:
Renewal date of the Interest Financial institution credit line Credit limit rate
Financiera Bajío, S.A. SOFOM, ER September, 2012Ps. 100,000 TIIE+4.0 Arrendadora y Factor Banorte, S.A. de C. V. SOFOM, ER March, 2010 Ps. 400,000 TIIE+3.5 Banco Monex, S. A. October, 2012 Ps. 125,000 TIIE+3.0
(2) In 2011, the Company created a debt certificate program for up to Ps. 2,000 million of a revolving nature for a five-year term. On March 25, 2011, the Company issued certificates for an aggregate principal amount of Ps. 1,000 million pursuant to such program at a spread of 280 basis points over the TIIE interbank rate and maturing in 2014. The net proceeds of this issue were used to refinance debt maturing in 2011. This commercial paper is guaranteed by our retail, manufacturing and other subsidiaries. The effective interest rate of this issuance as of December 31, 2012 is 8.28%. See “—Liquidity and Capital Resources—Grupo Famsa Peso-Denominated Debt—Long-term local bonds (Certificados Bursátiles de Largo Plazo).”
(3) In July 2010, the Company issued senior notes for an amount of U.S.$200 million, under Rule 144A/Reg. S, in the foreign market, at a rate of 11%, maturing in July 2015. As of December 31, 2012 and 2011 and January 1, 2011, the fair value of the senior notes were Ps. 2.9 million, Ps. 2.9 million and Ps. 2.7 million, respectively. The effective interest rate of this issuance as of December 31, 2012 is 12.28%. See “—Grupo Famsa U.S. Dollar-Denominated Debt—Senior Notes” below.
(4) On February 15, 2012, the Company issued notes for U.S.$40 million at a rate of 8.50%, under a commercial euro paper program established in 2009 for a total of U.S.$100 million. The net proceeds were used by the Company to refinance the existing debt and it matured on February 15, 2013. This program was renewed on the date mentioned before with a maturity on February 4, 2014, increasing the amount to U.S.$50 million at a rate of 7.36%. See “—Liquidity and Capital Resources—Grupo Famsa U.S. Dollar-Denominated Debt— Euro Commercial Paper Program.”
(5) Loans contracted by BAF with NAFIN for a total amount of Ps. 9.7 million, with an average interest rate of 8.93% and final maturities on September 2014 and December, 2015. See “—Liquidity and Capital Resources— Banco Ahorro Famsa’s Debt.”
(6) On October 16, 2012, the Company renewed its credit line for a maximum amount of EUR$6.6 million or its equivalent in U.S. Dollars. As of December 31, 2012, Famsa, Inc. had two U.S. Dollar loans outstanding under this credit facility in an aggregate principal amount of U.S.$8.0 million; this borrowing accrues interest at an annual rate of 2.51% maturing on October 16, 2013. See “—Liquidity and Capital Resources—Famsa USA Debt—Deutsche Bank N.Y.”
(7) As of December 31, 2012 and 2011 and January 1, 2011, the fair values of the short term and long term debt certificates were Ps. 2.0 million, Ps. 2.0 million and Ps. 1.7 million, respectively.
Certain of our indebtedness may be subject to restrictive covenants. See “Risk Factors—Risk Factors Related to the Notes—Restrictive covenants in our debt agreements may restrict the manner in which we can operate our business.”
The following sections briefly summarize material terms of certain of our credit arrangements, including credit arrangements of our subsidiary BAF. These descriptions are only summaries and do not purport to describe all of the terms of the credit arrangements that may be important.
Grupo Famsa Peso-Denominated Debt
Banco Santander Serfin, S.A.
As of December 31, 2012, we had a credit facility with Banco Santander (México), S.A., institución de banca múltiple, Grupo Financiero Santander, for a maximum amount of Ps.100 million, guaranteed by certain of our operating subsidiaries. As of December 31, 2012, we had borrowed Ps.100 million under this credit facility at a variable interest rate, which as of December 31, 2012 was 8.86% per annum, with a maturity date that was subsequently extended to December 11, 2013.
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Banco Mercantil del Norte, S.A. Revolving Credit Facility
We currently have a revolving credit facility with Banco Mercantil del Norte, S.A., institución de banca múltiple, Grupo Financiero Banorte, that will mature on November 14, 2015. As of December 31, 2012, we had an outstanding promissory note under this facility in an aggregate principal amount of Ps.199.8 million, with a variable interest rate of 8.06% and a maturity date of February 8, 2013. After the maturity of the promissory note, a new promissory note was issued for the same Ps.199.8 million outstanding aggregate principal amount, with a new variable interest rate of 8.09% and a maturity date of May 9, 2013.
BBVA Bancomer, S.A. Loan
As of December 31, 2012, we had a loan from BBVA Bancomer, S.A., Institución de banca múltiple, with an aggregate principal amount outstanding of Ps.63.5 million, a variable interest rate as of December 31, 2012 of 7.57%, and with a maturity date of April 17, 2013.
CI Banco, S.A. Loan
As of December 31, 2012, we had a loan from CI Banco, S.A., Institución de banca múltiple, with an aggregate principal amount outstanding of Ps.50.0 million, with a spread of 275 basis points over the 28-day TIIE interbank rate as of December 31, 2012, and with a maturity date of July 18, 2013.
Banco del Bajio, S.A.
As of March 31, 2013, we had a loan from Banco del Bajío, S.A., Institución de Banca Múltiple, for a maximum amount of Ps. 100.0 million. As of March 31, 2013, we had borrowed Ps. 100.0 million under this credit facility at a variable interest rate, which as of March 31, 2013 was 8.80% per annum, with a maturity date that was subsequently extended to September 25, 2015.
Commercial Paper Programs
We have established various Peso- and U.S. Dollar-denominated commercial paper programs. As of December 31, 2012, we had Ps.2,000 million outstanding under the following Peso-denominated commercial paper programs:
Long-term local bonds (Certificados Bursátiles de Largo Plazo)
Ps.2,000 million long-term local bonds program established March 22, 2011, for a five year term.
We issued bonds in an aggregate principal amount of Ps.1,000 million under this program on March 25, 2011, in an offering through the Mexican stock exchange (Bolsa Mexicana de Valores S.A.B. de C.V. or “BMV”). These bonds were priced at a spread of 280 bps over the 28-day TIIE interbank rate, mature on March 21, 2014. The net proceeds of this issuance, which amounted to Ps.982.8 million, were used by the Company to repay outstanding debt.
Additionally, the long-term local bonds contain certain restrictive covenants which, among other things, limit our ability to:
change or modify the main business purpose or activities of the Company;
incur additional debt in an amount higher than three times our net worth as of the date of issuance of the bonds;
pay dividends or reduce our capital stock without the prior written consent of NAFIN;
guarantee third party obligations, except for obligations assumed by our employees, subsidiaries and affiliates; and
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enter into or carry out any transaction with financial derivative instruments, except those entered into strictly for hedging purposes, pursuant to IFRS.
This commercial paper is guaranteed by our retail, manufacturing and other subsidiaries. In addition, the long-term local bonds contain standard default provisions, including a change of control provision, as well as cross- default provisions.
Short-term local bonds (Certificados bursátiles de corto plazo)
Ps.500 million local unsecured bonds program established April 25, 2011, for a two-year term. As of December 31, 2012, we had issued bonds for Ps.500 million under this program, which matured on different dates in March and September and November 2013 pursuant to the terms established for each issuance.
Ps. 500 million local unsecured bonds program established June 10, 2011, for a two-year term. This program enables us to issue both Peso and/or UDI-denominated bonds. As of December 31,2012 we had issued bonds for Ps. 500 million under this program, which mature on different dates in May 2013 and January 2014 pursuant to the terms established for each issuance.
The interest rate to be paid under these programs is determined on a case-by-case basis, pursuant to the terms established for each issuance. The weighted average interest rate for all the short-term local bonds issuances, as of December 31, 2012, was 7.49%. In addition, the short-term local bonds programs contain standard default provisions, including a change of control provision, as well as cross-default provisions.
Both the long- and short-term local bonds have been registered with the RNV maintained by the CNBV.
Grupo Famsa U.S. Dollar-Denominated Debt
Euro Commercial Paper Program
We established a U.S.$100.0 million Euro commercial paper program in December 18, 2009. As of December 31, 2012, we had issued short-term notes in an aggregate principal amount of U.S.$40.0 million under this program. These notes are coupon-bearing, have an interest rate of 8.5% per annum, and matured on February 15, 2013. The net proceeds of this issuance, which amounted to U.S.$39.5 million, were used by the Company to repay outstanding debt.
On February 4, 2013, we issued short-term notes in an aggregate principal amount of U.S. $50.0 million under the Euro commercial paper program. These notes are coupon-bearing, have an interest rate of 7.36% per annum, and mature on February 4, 2014. The net proceeds of this issuance were used to refinance a portion of the Company’s short-term debt, including the payment of the U.S. $40.0 million notes that were issued on February 2012 and for other corporate purposes.
Senior Notes
On July 20, 2010, Famsa issued U.S.$200 million of its Senior Notes due 2015, under Rule 144A/Regulation S, in the international markets, at a rate of 11%, maturing in July 2015. The Senior Notes due 2015 are guaranteed by our retail, manufacturing and other subsidiaries. Approximately 80% of the proceeds of the issuance were used to refinance the Company’s short-term liabilities. Additionally, the indenture governing our Senior Notes due 2015 contains certain restrictive covenants which, among other things, limit our ability to:
incur additional indebtedness;
pay dividends on our capital stock or redeem, repurchase or retire our capital stock or subordinated indebtedness;
make investments;
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create liens;
create any consensual limitation on the ability of our restricted subsidiaries to pay dividends, make loans or transfer property to us;
engage in transactions with affiliates;
sell assets, including capital stock of our subsidiaries; and
consolidate, merge or transfer assets.
If the notes obtain investment grade ratings from both Standard and Poor’s Ratings Group and Fitch Ratings Inc. and no default has occurred and is continuing, the foregoing covenants will cease to be in effect with the exception of covenants that contain limitations on liens and on, among other things, certain consolidations, mergers and transfer of assets for so long as each of the foregoing rating agencies maintains its investment grade rating.
Our Senior Notes due 2015 are subject to the concurrent Tender Offer. See “Summary—Concurrent Tender Offer and Consent Solicitation.”
Banco Ahorro Famsa’s Debt
Credit Agreement with Nacional Financiera, S.N.C. (“NAFIN”)
On July 22, 2008, BAF entered into a credit agreement with NAFIN pursuant to which BAF may borrow from NAFIN, from time to time, certain amounts, which may vary depending on the availability of funds received by NAFIN under the Program for Development Credit Transactions (Programa de Operaciones de Crédito de Segundo Piso) pursuant to which NAFIN receives funds from the Banco Interamericano de Desarrollo and the Banco Internacional de Reconstrucción y Fomento. As of December 31, 2012, the maximum amount BAF could borrow under this credit agreement was Ps.250 million. As of December 31, 2012, BAF had borrowed Ps.4.1 million at a variable interest rate of 9.57%, with a maturity date of September 2014 and Ps.5.6 million at a weighted average interest rate of 8.93%, with a maturity date in December 2015.
Famsa USA Debt
Deutsche Bank N.Y.
On October 16, 2012, Famsa, Inc. renewed a credit facility with Deutsche Bank AG for a maximum principal amount of EUR 6.6 million or its U.S. Dollar equivalent. As of December 31, 2012, Famsa, Inc. had two U.S. Dollar loans outstanding under this credit facility in an aggregate principal amount of U.S.$8.0 million. These U.S. Dollar loans accrue interest at a fixed rate of 2.39% per annum and mature on October 16, 2013.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements.
Contractual Obligations and Other Commitments
The following table contains a description of our contractual obligations and other commitments as of December 31, 2012.
Maturity Less than Total 1 Yr. 1-3 Yrs. 3-5 Yrs. 6+ Yrs. (thousands of Pesos) Long-term debt ...... 3,563.6 — 3,563.6 — — Capital lease obligations ...... — — — — —
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Operating lease obligations ...... 3,000.4 801.4 3,205.4 — — Purchase commitments ...... — — — — — Total ...... 6,564.0 801.4 6,769.0 — —
Market Risk Disclosures
Market risk represents our exposure to adverse changes in the value of our financial instruments as a result of fluctuations in the prevailing interest rates, foreign exchange rates and inflation. The following information contains certain statements that are subject to risks and uncertainties. Our actual results could differ from those referred to in such statements.
Risk Management Policies and Procedures
We are exposed to the market risks associated with potential fluctuations in the prevailing interest rates, foreign exchange rates and inflation in both Mexico and the United States.
Given our business activities and the short-term nature of our sales on credit, we believe that our level of market risk for potential changes in interest rates is low. We manage our interest rate risk by refinancing the short- term debt that we incur to fund our sales on credit. In addition, we have certain options to pay interest at either fixed or variable rates on some of our debt instruments. This enables us to match our debt maturities with the maturities of our customers’ repayment obligations and to use a mix of fixed and variable interest rates.
We do not use financial derivative instruments to hedge our exposure to the market risk associated with potential fluctuations in interest rates, foreign exchange rates and inflation.
For a description of BAF’s risk management policies and procedures, see “Our Business―Regulation― Legal Regime Applicable to Banco Ahorro Famsa―Risk Management―Policies and Procedures.”
New Accounting Pronouncements
As of January 1, 2012 we adopted IFRS for the preparation of our consolidated financial statements. Standards, amendments and interpretations issued but not yet effective as of March 31, 2013 and which have not been early adopted by us include:
IFRS 9 - “Financial instruments”; addresses the classification, recognition and measurement of financial assets and liabilities. IFRS 9 was issued in November 2009 and October 2010. This standard partially replaces IAS 39 “Financial instruments: recognition and measurement” on issues relating to the classification and measurement of financial instruments. IFRS 9 requires financial assets to be classified in either of the following two categories: those assets measured at fair value and those measured at amortized cost. The determination must be made at initial recognition of these assets. The classification depends on the business model of the entity used to manage its financial instruments and the contractual characteristics of the cash flows of the instruments. For financial liabilities, the standard retains most of the requirements of IAS 39. The main change is that in the case of the election of the option to use the fair value, the valuation effect related to own credit risk should be recognized as part of comprehensive income, unless it causes an accounting mismatch. We expect to adopt this standard on January 1, 2015. The IASB intends to expand IFRS 9 during 2011 and 2012 to add new requirements for derecognition of financial instruments, impairment and hedge accounting, so that by the end of 2012 IFRS 9 will be a complete replacement of IAS 39.
IAS 32 (amended) “Financial instruments: Presentation”, offsetting of assets and liabilities. These amendments are the application guidance of IAS 32 and clarify some of the requirements for offsetting financial assets and financial liabilities in the statement of financial position. The standard is mandatory from January 1, 2014.
Our management believes that the adoption of the new standards and amendments discussed above will have no significant impact on our consolidated financial statements.
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OUR BUSINESS
Overview
We are a leading company in the Mexican retail sector, satisfying families’ different purchasing, financing and savings needs. Our target market is the middle and low-middle income segments of Mexico’s population and the U.S. Hispanic population in certain U.S. states where we operate.
Our Mexican retail operation offers furniture, electronics, household appliances, cellular telephones, computers, motorcycles, clothing and other durable consumer products, which are sold mainly through our Famsa stores. In the states of Texas and Illinois in the U.S., we offer furniture and appliances through our subsidiary Famsa, Inc. As of December 31, 2012, we owned and operated 380 stores and 11 distribution centers, including 355 stores in 82 cities throughout Mexico and 25 stores in Texas and Illinois. As of December 31, 2012, in Mexico we also operated 286 banking branches within Famsa stores and 18 independent banking branches. We believe that over the course of our 42-year history, we have built a strong brand name associated with a broad product offering at low prices and personalized customer service with convenient consumer financing programs. As of December 31, 2012, furniture, electronics and household appliances accounted for 38.8% of our consolidated total revenues.
In connection with our retail operations, we offer consumer financing to our customers who opt to purchase our products and services on credit, many of whom do not typically have access to other forms of financing, which provides them with an alternative method to purchase our products and services. In 2012, 81.2% of our retail sales were through our credit sales programs. To enhance our consumer financing business in Mexico, in 2007, we established our own commercial bank, BAF, allowing us to offer additional banking services to our customers, and generate a lower-cost, more stable form of short-term financing for our operations. According to the CNBV, as of December 31, 2012, BAF operated one of the ten largest banking branch networks in Mexico, with 286 banking branches within Famsa Mexico stores and 18 independent banking branches, and managed an aggregate amount of 2.9 million saving and credit accounts.
Our total revenues were Ps.13,866 million for the year ended December 31, 2011 and Ps.14,124 million for the year ended December 31, 2012. Our U.S. operations represented 12.1% of total revenues during 2012 with 13.2% of the total retail space. Our Adjusted EBITDA totaled Ps.1,955 million for the year ended December 31, 2011 and Ps.2,379 million for the year ended December 31, 2012. The following table shows certain of our financial and operating data for the years ended December 31, 2011 and 2012 in accordance to IFRS.
Dec 31, 2011 Dec 31, 2012 Dec 31, 2012 (USD) Number of stores 401 380 — Total sales area(1) 539,918 487,923 — Total revenues(2) Ps. 13,866 Ps. 14,124 1,089 Same-store sales 1.3% 1.6% — Sales on credit, as a percentage of our total revenues 79.6% 81.2% — Famsa USA sales, as a percentage of total revenues 12.6% 12.1% — Adjusted EBITDA(2)(3) Ps. 1,955 Ps. 2,379 183 Adjusted EBITDA margin (%)(4) 14.1% 16.8% —
______(1) In square meters.
(2) In millions of Pesos or U.S. Dollars, except as otherwise indicated.
(3) Adjusted EBITDA is a non GAAP financial measure computed under IFRS. Adjusted EBITDA as such term is used in this offering circular consists of adding to the operating profit; interest expense on bank deposits, depreciation and amortization. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—EBITDA and Adjusted EBITDA Reconciliation.”
(4) Adjusted EBITDA margin is calculated as Adjusted EBITDA divided by total revenues.
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Famsa Mexico and Famsa USA manage our retail operations through our network of stand-alone stores and anchor stores. In addition to the products and services provided by stand-alone stores, anchor stores serve as administrative centers, providing customer service, credit processing, and other support to the stand-alone stores in the same region.
87.9% of Grupo Famsa’s consolidated total revenues for the year ended December 31, 2012 were generated in Mexico. Over the last decade, Mexican consumers have increased their overall demand for goods and services as a result of greater purchasing-power, economic stability and income growth. Our target market in Mexico is primarily the middle and low-middle income segments of the population. We consider these segments to comprise the adult working population that earns a household monthly income of between Ps.3,420 (U.S.$264) and Ps.44,200 (U.S.$3,409). Based on AMAI’s Mexican Housing Overview of 2012, this group represents approximately 74% of the Mexican households living in cities with a population greater than 50,000 inhabitants. For further discussion of our target demographics, see “Target Markets.” Famsa Mexico has targeted this large segment of the population since 1970 by offering convenient installment credit plans, a broad assortment of products, and personalized customer service. Currently, Famsa Mexico serves its customers through 355 stores (298 stand-alone and 57 anchor) that are generally located within the metropolitan areas of cities with a population in excess of 50,000, and range in size from 400 to 3,000 square meters, with an average of 1,193 square meters per store. On average, each store maintains approximately 2,205 durable consumer products on display, ranging from furniture, electronics and household appliances to clothing and cellular telephones. In addition, we believe that we are also one of Mexico’s largest wholesalers of household appliances and electronic products, operating 17 wholesale stores in the principal metropolitan areas of 17 states.
Famsa USA represented 12.1% of Grupo Famsa’s consolidated total revenues with 13.2% of the total retail space, for the year ended December 31, 2012. Hispanics make up the largest and fastest-growing minority segment in the United States. According to U.S. Census Bureau estimates, in 2010 the Hispanic population reached 50.5 million in the United States and, between 2000 and 2010, grew by 43%, which was four times the growth of the total U.S. population. We operate in Texas and Illinois, where approximately 23% of the U.S. Hispanic population resides. Famsa USA has targeted the U.S. Hispanic market by replicating Famsa Mexico’s business model and leveraging the recognition of the “Famsa” brand. Famsa USA’s stores carry an average of 1,822 products on display, and range in size from 1,400 to 3,000 square meters with an average of 2,322 square meters. Our main product categories in the United States are furniture, electronics and household appliances. In addition, we offer differentiated services, such as Famsa-to-Famsa, through which our customers can purchase merchandise at Famsa stores in the U.S. and have it delivered to others in Mexico through Famsa Mexico, taking advantage of our infrastructure on both sides of the U.S.-Mexico border.
We sell brand-name and third-party domestic and imported products. The principal brands available in our stores include Sony, White Westinghouse, Panasonic, Whirlpool, LG, Samsung and Mabe, among others, and we continually seek to expand our product and service offerings. Furthermore, Kurazai, our own motorcycle brand, has been ranked as one of Mexico’s four best-selling motorcycle brands, after only three years in the market. Our stores are characterized by their display method, which is designed to maximize sales and use of space. Most of our stores have their own warehouse area to ensure that their most popular products are readily available. Each of our stores is outfitted with integrated inventory management and marketing systems and connected to STORIS®, which is an advanced supply chain management application that provides real-time information on inventory levels, purchase order status and other information to both stores and vendors.
Given our product mix of high-ticket items and our focus on middle and low-middle income individuals, Famsa’s comprehensive value offer has always included the availability of flexible credit sales programs, which enhance our customers’ purchasing power by providing a convenient source of financing for purchasing the retail products we offer. The credit sales programs we offer involve weekly, bi-weekly or monthly payments throughout terms that can range from three to 24 months, depending on the customer’s preference and payment capacity. In 2012, credit sales accounted for 81.2% of our total sales. We believe that our credit sales programs improve our retail operation’s profitability and boost our growth prospects.
The retail price of the merchandise sold in Mexico depends on the market trends of the diverse type of products offered. In addition, our installment program considers various factors, such as the repayment period, the customer’s credit history and the type of product. Sales on credit generally generate higher gross margins than those yielded by our cash sales. In the United States, the purchase price of the merchandise sold on credit is determined
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based upon a suggested retail price plus a finance charge that is reviewed periodically. Generally, cash purchases in the United States are not subject to discounts.
All customers who wish to enter into a credit sales program go through our credit approval process, which has been honed throughout our over 42 years of experience in consumer financing. This process includes a proprietary credit application, credit bureau analysis, telephone confirmation and, in some cases, physical address verification. Additionally, our credit approval process involves the determination of the customer’s payment capacity based upon various factors such as monthly income, prior outstanding credit commitments and credit history. The payment capacity figure is one of the most important outputs of the entire credit approval process. This amount represents the maximum aggregate amount and number of installments a customer can commit to at any given time. For instance, if a customer has a payment capacity of Ps.1,000 he or she can purchase any amount of products whose aggregate installments at any time are equal to or less than Ps.1,000. Customers of our personal loans undergo the same credit approval process as those purchasing retail goods, though personal loans are mostly granted to existing credit sales customers with proven payment capacity. During the past three years, we have centralized the credit approval process from 78 different offices to three supervised and controlled offices to ensure that credit policies are carried out properly and to obtain feedback from our internal audit area. Currently, all credit applications are evaluated by an antifraud division that detects suspicious customer profiles based on established policies, and by an analytics division, that centralizes information necessary to update the Management Information System, and performs analyses, models and forecasts.
With the establishment of our banking operations, through BAF, we have increased our product and service offering to our customers. BAF leverages Famsa’s expertise to serve our customer base and our target market, which has limited access to banking services. We believe this represents an opportunity for growth given that approximately 60% of our customer base has never used banking services before. We have incorporated our banking operations within our retail stores, and as of December 31, 2012, we had 286 banking branches within Famsa stores and 18 independent banking branches, becoming one of the ten largest bank networks in the country according to the CNBV. Our expansion into the banking sector through BAF has allowed us to create additional consumer finance products, which diversify our product offering and thereby partially hedge our exposure to the sensitivity of durable goods demand caused by the economic downturn during past years. In addition to our credit sales programs, we offer BAF customers several savings and checking accounts and other investment products, as well as personal and business loan products. Personal loans are unsecured cash loans used to meet needs not offered in our stores. As of December 31, 2012, interest earned on personal loans offered by BAF represented 25.0% of Famsa Mexico’s total revenues. Business loan products comprise commercial loans issued by BAF to micro, small and medium enterprises, as well as to other financial institutions. During the year ended December 31, 2012, the commercial loans portfolio in Mexico increased 28.3% compared to the year ended December 31, 2011. The integration of BAF branches into our retail stores also provides us an enhanced opportunity to cross-sell our retail products and banking products and services in our BAF branches and our retail stores, respectively.
Through these banking branches, we have been able to obtain deposits by offering several savings and checking accounts and other investment products to our customers. Bank deposits, distributed across more than 1.1 million accounts, have grown consistently since 2007, and continue growing at a double-digit pace per year, from the year ended December 31, 2007 to the year ended December 31, 2012. For the year ended December 31, 2012, BAF’s deposit base grew 15.0% year-over-year, reaching Ps.11,999 million. Furthermore, BAF supports the sale of merchandise in Famsa Mexico’s stores. BAF had a capitalization ratio of 13.0% as of December 31, 2012, which results from dividing net equity by the assets at risk (including credit, market and operational risk). As a result of the stability of its operations, BAF has a capitalization ratio well in excess of any statutory requirements. The capitalization rules for financial institutions establish requirements for specific levels of net equity, as a percentage of assets subject to both market and credit risk. The capitalization index required for BAF is a minimum of 8%.
In addition, customers’ deposits have provided us with a stable and less expensive source of funding for our Mexican retail operation, further enhancing consumer financing profitability. The average interest rate of BAF´s deposit base has fallen from 8.1% as of December 31, 2009 to 5.2% as of December 31, 2012.
Our Business Strengths
We believe our business has the following strengths:
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Strong Market Position and Growth Platform in the Mexican Retail Industry
Our extensive network of stores and distribution centers covering most of the major metropolitan areas in Mexico provides what we believe to be an extensive distribution channel to launch new products and services to our target market. Moreover, our established retail store and distribution infrastructure, in particular the location and geographic coverage of our stores and distribution centers, allows us to efficiently continue our expansion plans and gives us a significant advantage over existing and new competitors.
We offer a broad assortment of well-recognized brands, low prices, personalized customer service and convenient credit sales programs, which we believe have strengthened our customer loyalty. We believe the Famsa name has strong brand recognition, particularly in the middle and low-middle income segments, which we continually reinforce through an aggressive multi-media advertising program with national scope in Mexico. Our sales systems and marketing efforts are further supported through initiatives such as our “Gran Crédito” direct marketing program, whereby our credit representatives visit the homes of potential customers in an effort to set up new accounts both in areas where we currently operate stores and in advance of new store openings. Other initiatives we carry out to reinforce our position include telemarketing, direct mail, cashier pitches and our “Cambaceo” door-to-door sales program. In addition, we believe that our strong market position in the retail industry in Mexico has enhanced our ability to negotiate better prices with our suppliers.
The following map shows the geographical distribution of our stores in Mexico as of December 31, 2012.
Famsa Mexico Retail Locations
Proven Track Record in Consumer Financing
We have 42 years of experience providing consumer financing, with an emphasis on offering flexible credit sales programs to our retail customers while maintaining prudent risk management and credit evaluation policies and procedures. See “—Consumer Lending Operations.”
Our target markets’ financing needs have typically been underserved by the traditional financial sector. Since 1970, we have been developing the necessary skill set and infrastructure to capitalize on the growing credit
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needs of this large segment of the population. As of December 31, 2012, we managed a total of 1.9 million active credit accounts with a team of over 2,858 credit-related personnel, including approximately 247 call-center agents, all of whom are dedicated to making credit accessible to our customers while ensuring the quality of our loan portfolio. We also provide convenient options for our customers to manage their credit account payments, including our “Promobien” program, which offers customers the option to make payments on their Famsa credit accounts through an automatic payroll deduction with participating employers. As of December 31, 2012, we maintained a relatively low uncollectibility level of approximately 7.3%, measured as the percentage of recoveries over total accounts receivable. Combined with our in-depth knowledge of the retail industry, we believe that our extensive experience with risk management and consumer financing represents a competitive advantage that we have and that we will continue to enhance through BAF.
Funding through Banco Ahorro Famsa
In the past, we funded our credit sales program through multiple credit lines with major financial institutions and international and Mexican securities markets. However, with the establishment of BAF and the growth of its deposit base, we now have access to a more stable and less expensive source of short-term funding to support our credit sales portfolio and other growth initiatives. As of December 31, 2012, BAF was the source of 72.2% of our net funding and BAF’s average cost of funding was 5.2%. Initially funded in part through financial intermediaries and interbank loans, BAF is now almost fully-funded through its own deposits in the form of savings and checking accounts, certificates of deposit and other consumer investment products. The combination of our diversified funding platform with our risk management experience and knowledge of the retail industry represents a key competitive advantage.
Integrated Consumer-Targeted Banking Services
Through the development of BAF we are able to offer our customers targeted banking products and services that are normally not available to a large portion of the customer base. Based on our estimates, approximately 60% of Famsa Mexico’s customers have never used banking services. As a result of the credit evaluation and monitoring to which our retail credit sales account customers are already subject to and the associated records that we keep, we believe that we are in a better position than other banking services providers to offer our retail customers first-time banking services and develop products tailored to their needs. The integration of BAF with our retail operations provides a variety of cost-saving synergies, including joint product marketing through mailings, telemarketing, cashier sales pitches, television and other marketing campaigns, advertising on bank statements and cross selling in general. In addition, BAF provides a reliable and affordable source of funding via more than 1.1 million accounts with an average cost of funding of 5.2% as of the year ended December 31, 2012. BAF now manages over 2,226 point-of-sale terminals in our stores, which accept Famsa and third-party credit and debit cards, along with our 175 in-store ATMs. BAF also handles online payroll services for five Famsa companies and 10 third-party companies. Additionally, the integration of our BAF branches into our retail stores increases our customers’ familiarity with our stores and personnel and allows us to provide longer hours of operation than other banking services providers.
Product Diversification and Cross-Sales
Our expansion into the banking sector through BAF has allowed us to create additional consumer finance products, which diversify our product offering and thereby partially hedge our exposure to the sensitivity of durable goods demand caused by the economic downturn during past years. In addition to our credit sales programs, we offer BAF customers several savings and checking accounts and other investment products, as well as personal (unsecured cash loans used to meet our customer’s personal needs) and business loan products. As of December 31, 2012, interest earned on personal loans offered by BAF represented 25.0% of Famsa Mexico’s total revenues. Business loan products comprise commercial loans issued by BAF to micro, small and medium enterprises, as well as to other financial institutions. As of December 31, 2012, the commercial loans portfolio in Mexico increased 28.3% compared to the same period in 2011. The integration of BAF branches into our retail stores also provides us an enhanced opportunity to cross-sell our retail products and banking products and services in our BAF branches and our retail stores, respectively.
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Personalized Quality Customer Service and Point-of-Sale Marketing
We are dedicated to providing the highest-quality customer service. We believe our desire to serve our customers is evidenced by our ability to continually exceed their expectations for offering high-quality products at competitive prices. We actively manage client relationships through:
a well-trained, motivated sales force focused on delivering quality personalized service;
customer service centers in each of our anchor stores;
a call center to provide customer service;
our “Gran Crédito” and “Cambaceo” (or “canvassing”) programs; and
a wide range of post-sale services, including repair services and home delivery.
Customer satisfaction is measured through surveys conducted by an external provider and may be either in- store or by telephone. In-store surveys are conducted near the exit at five of our stores during high seasons (December, Mother's Day, Buen Fin), and include questions regarding service, wait times and products, among other topics. Telephone surveys are conducted on a monthly basis to approximately 2,800 customers with the objective of obtaining information regarding customer preferences.
We believe our commitment to customer service is a significant factor in increasing our customer loyalty and expanding our customer base. Additionally, our dedication to high-quality, personalized customer service has been critical to the sale of complementary products such as extended warranties and the introduction of new products, including life and car insurance (which we sell for a commission) and personal loans.
Advanced Information Technology and Systems
We operate STORIS®, a modern supply chain management software system that, among other functions, provides us with key real-time information regarding retail sales, inventory levels, product availability and purchase order status, enhancing our decision-making process. Our technology improves the efficiency of our supply chain by allowing us to manage detailed information in such a way as to increase the likelihood that our customers will find exactly the products they wish to purchase while optimizing the associated inventory levels. Moreover, we are able to track the interests, needs and buying habits of our customers, anticipating changes in consumer demand.
Customer service has benefited from our technology by having:
readily available access to important product information such as technical product descriptions and product availability;
the ability to identify and prevent potential service problems (e.g., incorrect or inaccurate product information) in connection with matters such as inventory availability and returns; and
a reliable source for registering and handling customer complaints.
In addition, during the past few years we have complemented our information technology infrastructure with SAP and Calypso, a sales processing system developed by Unisys, to manage our human resources, accounting and soft good retail operations. We use advanced operational information technology to support BAF’s operations, including ICBS-FISERV, Metacard (credit card processing FISERV module) and eBanking. In addition to providing a more sophisticated consumer financing management platform, our bank’s systems enable us to identify cross-selling opportunities across credit and deposit customer databases by integrating virtually all of Famsa Mexico’s existing credit accounts with BAF’s growing deposit base.
Strong Management Team and Motivated Employees Focused on Continuous Improvement
Our executive officer team has over 25 years of accumulated specialty retail experience and a solid track record of sustainable growth. Additionally, top management has successfully fostered a work culture based on
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teamwork and focused on continuous improvement and commercial innovation. Each of our employees has individual objectives, which serve as a basis for measuring performance and are associated with broader corporate goals. Having met operational and financial objectives, our employees are eligible for bonuses according to our compensation system. We believe our goal-oriented culture and incentive programs have contributed to the development of a motivated and well-aligned team that is dedicated to serving our customers’ needs and ensuring the sustainability of our business. Our positive performance rests on practices of sound corporate governance. Famsa was one of the few finalists in the second edition of the “Affinitas” Awards for Good Corporate Governance in Latin America, held on November 22, 2007 as part of the 9th Latibex Forum in Madrid, Spain. More than 580 companies were evaluated by the jury and 12 finalists were chosen on the basis of such criteria as shareholders’ rights, equality, stakeholder involvement, communication and transparency and responsibilities of the board of directors.
Solid position and strong brand recognition in Texas and Illinois
Famsa is well positioned as a regional retailer in home furnishings, focusing on the Hispanic market in the U.S. We began operating in Texas in 2002, and currently we have 25 stores across Texas and Illinois along with two distribution centers. Hispanics make up the largest and fastest-growing minority segment in the United States. The Hispanic population accounted for more than half of the nation’s growth in the past decade. We believe that our brand recognition is unmatched by any other Hispanic-oriented retailer. Famsa USA has targeted the U.S. Hispanic market by replicating Famsa Mexico’s business model. We have implemented a series of operational initiatives, such as expanding the selection of our product line, launching attractive advertising campaigns and promotions, and improving our exhibition spaces. We also offer differentiated services, like in-house credit, price match guarantees, next-day delivery and Famsa-to-Famsa, through which our customers can purchase merchandise at Famsa stores in the U.S. and have it delivered to others in Mexico through Famsa Mexico, taking advantage of our infrastructure on both sides of the U.S.-Mexico border.
Our Business Strategy
Grupo Famsa serves specific consumer, credit and savings needs of the middle and low-middle income segments of the population through what we believe is a unique portfolio of complementary businesses. We believe the synergies among our three business units, Famsa Mexico, Banco Ahorro Famsa, and Famsa USA, enable us to attain competitive advantages that reinforce our position. Our business strategy focuses on maximizing these synergies to provide a comprehensive and differentiated value offer to our customers who value personalized service and require credit options that are not offered to them by the traditional banking sector.
Famsa USA serves the Hispanic segment, successfully replicating Famsa Mexico’s business model in the states of Texas and Illinois. Our objective is to increase our customer base by attracting new customers and maintaining existing ones through the communication of our strengths, such as in-house credit, name brands, competitive prices, unique promotions and exclusive Famsa-to-Famsa service.
The key elements of our strategy are the following:
Enhance Our Consumer Financing Operations in Mexico through Banco Ahorro Famsa
We continue enhancing our consumer financing operations in Mexico through the development of BAF. We believe that further development of BAF will lead to an additional decrease in our cost of financing, allowing us to apply greater financial resources to other areas of our operations. We believe the inclusion of BAF branches in our retail stores and the recent expansion plan of Grupo Famsa, which encompasses the opening of independent banking branches, will enable us to increase our customer base in Mexico and enhances our ability to sell additional products to our consumers. Besides acting as a catalyst for further growth in our retail operations, we believe BAF will increasingly become a source of independent growth through expansion of existing and development of new financial products and services. Furthermore, we believe BAF’s personal and business loan programs and other financial products will help us further diversify our product offerings to hedge our exposure to durable goods demand sensitivity. We intend to continue building upon our experience and knowledge of providing consumer financing to further successfully establish, expand and operate BAF.
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BAF is a significant multiple-service banking institution in Mexico, increasing the services provided in Famsa Mexico’s stores. In 2012, we achieved record number of savings deposits, expanded our customer base, reduced our average cost of funding, and opened 17 banking branches, including 12 independent banking branches.
Selectively Expand Our Store Network in Mexico
We believe our current retail store network provides an important platform for our selective expansion in Mexico. Our expansion strategy includes opening new stores in areas better served by full-format stores to selectively replace smaller stores, opening additional stores in strategic, high-demand areas of cities in which we already operate and opening new stores in regions which we believe offer a substantial growth opportunity given the existing number of cities with populations exceeding 50,000 inhabitants that are currently underserved by us or our competitors. Based on our estimates, there are approximately 395 cities in Mexico with populations exceeding 50,000 inhabitants, and we currently operate in 82 (or 21%) of them. Furthermore, our expansion strategy also encompasses the opening of independent banking branches, which require a lower level of investment due to their smaller retail space, on average of 150 square feet. These independent banking branches offer BAF’s current portfolio of financial products and services, in addition to door-to-door credit origination (“Gran Crédito”), door-to- door sales program (“Cambaceo”) and durable goods sales through electronic catalogs maintained within the independent banking branches.
Improve Our Sales and Marketing Efforts to Increase Our Market Share
We plan to continue improving our sales force productivity through more effective training programs and attractive compensation systems and enhance our marketing efforts to attract new customers and increase our market share. We also plan to improve our information technology systems, databases and customer relationship management system in order to enhance our ability to anticipate consumer demand and promote commercial innovation. While our marketing strategy emphasizes mass media advertising, we also intend to further expand our telemarketing program and explore other new direct marketing channels. In addition, we will continue our commitment to customer service and customer satisfaction by providing a combination of personalized service, high-quality products and services at competitive prices, and flexible consumer financing.
Our marketing program includes different channels, among them: digital marketing (social media, e- marketing and famsa.com website); customer service (FAQ 1-800 number); direct marketing (telemarketing, SMS, e-mailing and interactive voice response telephone marketing); marketing intelligence (research, benchmarking and price monitoring); customer relationship management (loyalty program, cross marketing channels, customer data warehouse, customer segmentation, and marketing campaigns management); and finally, marketing communications (above-the line, below-the line, media, digital and production).
Continue to Improve Our Margins through the Introduction of New Products, Services and Distribution Channels
We plan to take advantage of the strong growth platform provided by our extensive retail store network to continue developing new products, services and distribution channels that satisfy our customers’ needs, such as Internet sales, new consumer financing products, footwear catalog sales, and motorcycle and automobile financing, in addition to other products and services primarily directed to customers in higher income brackets. Furthermore, we expect that through the continued development and integration of BAF, we will be able to offer a growing variety of personal and business financial products and services in Mexico. We believe that the continued development of new products, services and distribution channels will allow us to cross-sell a broader range of products and services more effectively, which should lead to improvements in our margins and increase our competitiveness, further strengthening our growth platform. Additionally, we expect that the continuing development and integration of BAF will provide a lower-cost source of financing and expand our products offering, which may lead to an increase in our profitability.
Our product and service diversification strategy includes the making of loans to support micro, small and medium-sized enterprises. This search for new ways to generate value has positioned BAF as an attractive alternative for customers seeking productive working capital loans, with this line of business growing more than 28% in 2012.
Our success with these loans reflects a series of initiatives we implemented during 2012, including the
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opening of 10 service centers in the Mexican cities of Monterrey, San Luis Potosi, Torreon and Saltillo to serve the micro, small and medium enterprises segment. At these service centers, our specialized personnel help customers from a wide range of industries, including the construction, financial services and commercial sectors.
Improve Profitability of Famsa USA
Precipitated by the economic downturn beginning in 2008 that adversely affected Hispanic consumers in many of our markets in the United States, we posted operating losses in Famsa stores located in California, Nevada and Arizona and elected in 2012 to close our stores in those states. As a result, in 2012 we began a comprehensive review of Famsa USA’s operations in an effort to improve its profitability. We are consolidating our operations in the profitable regions of Texas and Illinois and have already implemented several initiatives, including increasing our product assortment, enhancing our personalized service, launching an attractive advertising campaign and reducing operating expenses. Our objective is to increase our customer base by attracting new customers and maintaining existing ones through the communication of our strengths, such as in-house credit, name brands, competitive prices, unique promotions and the exclusive Famsa-to-Famsa service. As of December 31, 2012, we had 22 stores in Texas and 3 stores in Illinois.
History
The origin of our business dates to 1970, with the opening of a household appliances, furniture and electronics store in the city of Monterrey, Nuevo León, in northern Mexico, followed by additional stores in Monterrey and other markets in the states of Nuevo León and Coahuila over the course of the next decade. The Company was formally organized in 1979, under the name Corporación Famsa, S.A., in order to centralize the then- existing stores’ merchandise purchasing process and attain economies of scale.
During the 1980s, we began expanding into other business segments. In 1980, we ventured into the wholesale market with the establishment of our subsidiary Mayoramsa, S.A. de C.V. (“Mayoramsa”), and in 1983 we created Impulsora Promobien, S.A. de C.V. (“Promobien”) to offer consumer loans to the employees of our affiliates. In 1987, we began our furniture manufacturing operations through our subsidiary, Expormuebles, S.A. de C.V. (“Expormuebles”).
The year 1990 marked the beginning of a significant growth period for the Company. During the 1990s, we established a number of subsidiaries and expanded our geographical presence to other cities in central Mexico, including San Luis Potosí, Querétaro, León, Celaya and San Juan del Río. In 1991, we opened six stores within the metropolitan areas of Guadalajara, Ciudad Obregón, Los Mochis, Navojoa and Hermosillo. Between 1995 and 1996, we implemented a strategic expansion plan to capitalize on the then-ongoing Mexican economic recovery process, opening additional stores in the States of Nuevo León, Puebla and Aguascalientes. By the decade’s end, we had a total of 185 stores located in 49 cities throughout Mexico. Concurrent with this geographic expansion, we also diversified our lines of products. For instance, in 1994 we began selling clothing, footwear, cosmetics and jewelry.
In 1999 and 2000, Tapazeca, S.L., a joint venture between Soros Fund Management and Mr. Fernando Chico Pardo, and Monterrey Venture Holding, L.L.C., an affiliate of General Electric Pension Trust, acquired in the aggregate a 13.78% interest in the Company. The proceeds of these transactions enabled us to further pursue our strategic expansion plan. The participation of these investors through Tapazeca, S.L. was sold to the public in May 2006 when we became a public company.
Between 2000 and 2010, we opened 174 additional stores throughout Mexico, primarily in the country’s Gulf and Central regions, including Veracruz, Tabasco, Mexico City, Pachuca, Toluca, Cuernavaca, Yucatan, Campeche and Colima, among others. As of the close of 2012, we had a total of 355 stores located throughout Mexico.
Concurrent with our geographic expansion in Mexico, in 2001 we entered the United States market with the opening of a store in California, aimed at catering to the needs of the U.S. Hispanic population. Our expansion plan in the United States led to the acquisition and integration into our operations in 2006 of the five “National” furniture stores in San Antonio, Texas and in 2007 of the 12 “La Canasta” furniture stores in the cities of Los Angeles, California and Houston, Texas.
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In May 2006, we became a public company through an initial public offering of our shares on the BMV and also established BAF in order to further our consumer lending operations and enter the banking business. BAF commenced operations in Monterrey, Nuevo León, in 2007, and in the same year we opened 176 BAF branches within our stores in 12 states in Mexico. In 2008, we opened an additional 101 BAF branches in our stores in the states of Nuevo León, Sonora, Sinaloa, Puebla, Coahuila, Veracruz, San Luis Potosí, Aguascalientes, Baja California, Michoacán, Morelos, Toluca, Hidalgo, Tamaulipas, Jalisco, Campeche, Tabasco, México, Zacatecas, Colima, Chihuahua and Guanajuato. As of December 31, 2012, BAF had a total of 286 banking branches within Famsa Mexico stores and 18 independent banking branches located throughout Mexico.
In 2008, we opened 13 new stores and acquired and integrated into our operations Edelstein’s Better Furniture’s eight stores in the Rio Grande Valley of Texas. Precipitated by the economic downturn beginning in 2008 that adversely affected Hispanic consumers in many of our markets in the United States, we posted operating losses in Famsa stores located in California, Nevada and Arizona and elected in 2012 to close our stores in those states. As a result, in 2012 we began a comprehensive review of Famsa USA’s operations in an effort to improve its profitability. We are consolidating our operations in the profitable regions of Texas and Illinois and have already implemented several initiatives, including increasing our product assortment, enhancing our personalized service, launching an attractive advertising campaign and reducing operating expenses. As of December 31, 2012, we had 22 stores in Texas and 3 stores in Illinois. With regard to the states of California, Nevada and Arizona, we focused our efforts in these states on collecting the remaining balance of our receivables portfolio through kiosks and third party collectors. We believe that our decision to refocus our U.S. operations on Texas and Illinois will bring long-term benefits.
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Organizational Structure
We conduct our business operations through 17 direct operating subsidiaries. The following chart shows our organizational structure and our subsidiaries, all of which are substantially wholly owned, directly or indirectly by us (we hold a 53.75% interest in Geografía Patrimonial, S.A. de C.V.):
The subsidiary guarantors of the notes being offered hereby are: Fabricantes Muebleros S.A. de C.V., Famsa del Centro S.A. de C.V., Famsa del Pacífico S.A. de C.V., Famsa Metropolitano S.A. de C.V., Impulsora Promobien S.A. de C.V., Famsa, Inc., Famsa Financial Inc. Auto Gran Crédito Famsa S.A. de C.V., Expormuebles S.A. de C.V., Mayoramsa S.A. de C.V., Verochi S.A. de C.V., Geografía Patrimonial S.A. de C.V. and Famsa México S.A. de C.V.
Operating Subsidiaries
We operate our 380 stores in Mexico and the United States through our subsidiaries listed below:
Fabricantes Muebleros, S.A. de C.V., Famsa Metropolitano, S.A. de C.V., Famsa del Pacífico, S.A. de C.V. and Famsa del Centro, S.A. de C.V., which are responsible for the operation of Famsa Mexico’s 355 stores;
Famsa, Inc., which operates our 25 stores in the United States and is a corporation organized under the laws of the State of California, and Famsa Financial, Inc., a subsidiary of Famsa, Inc., which maintains the requisite licenses in connection with the issuance of regulated loans in the State of Texas;
Promobien, which serves as administrator for our Promobien program;
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Auto Gran Crédito Famsa S.A. de C.V., which is engaged in the personal car loan business;
Verochi S.A. de C.V. (“Verochi”), which is engaged in the sale and distribution of footwear and other related products both directly and through third parties;
Expormuebles, a manufacturer and distributor of furniture and related products; and
Mayoramsa, which is engaged in the wholesale and distribution of household appliances and furniture through its 17 warehouse clubs.
Financial, Administrative and Other Subsidiaries
We conduct our banking and consumer lending businesses, receive administrative support and services and are engaged in other business activities through our subsidiaries listed below:
Banco Ahorro Famsa, S.A., institución de banca múltiple, or BAF, which is responsible for our banking business and providing financing services to our retail customers;
Promotora Sultana, S.A. de C.V., Corporación de Servicios Ejecutivos, S.A. de C.V., Suministro Especial de Personal, S.A. de C.V. and Corporación de Servicios Ejecutivos Famsa S.A. de C.V., which provide administrative, accounting, audit, financial planning, personnel and IT systems development and maintenance services, as well as consulting services in connection with a variety of areas, including technical assistance, research and development, statistical information and analysis, marketing and public relations; and
Geografía Patrimonial, S.A. de C.V., which was incorporated and began operations in November 2009 and which is engaged primarily in leasing real estate to related parties.
Target Markets
Our target market in Mexico is primarily the middle and low-middle income segments of the population. We consider these segments to comprise the adult working population that earns a household monthly income of between Ps.3,420 (U.S.$264) and Ps.44,200 (U.S.$3,409). Based on the Asociación Mexicana de Agencias de Investigación de Mercado y Opinión Pública (“AMAI”), this group represents approximately 74% of the Mexican households living in cities with a population greater than 50,000 for the year 2012.
The table below shows the breakdown of the Mexican population inhabiting cities with a population greater than 50,000, according to the AMAI for the year 2012:
Percentage of Total Demographic Group Population Household Income per Month
“A/B” ...... 6.8% Ps.108,000 and above “C+” ...... 14.2% Ps.44,300 - Ps.107,000
“C” ...... 17.0% PS.14,700 - PS.44,200 “C-” ...... 17.1% PS.11,700 - PS.14,600 “D+” ...... 18.5% PS.8,610 - PS.11,600 “D” ...... 21.4% PS.3,420 - PS.8,600
“E” ...... 5.0% LESS THAN PS.3,420
______Source: AMAI
Our stores target customers who are primarily in the C, C-, D+ and D groups. However, we also offer a variety of products and services that primarily appeal to consumers from the A/B group (LED and or LCD flat
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screen televisions, etc.). The age distribution of Mexico’s population favors the maintenance of high levels of consumption and offers significant opportunities for growth. According to the Instituto Nacional de Estadística y Geografía (“INEGI”), as of December 31, 2010, approximately 57.5% of the Mexican population was aged between 20 and 74, our primary consumer group, and approximately 38.8% was under the age of 20, which we believe represents future growth potential for our customer base.
In addition, Mexico’s middle and low-middle income housing industry has historically reported strong performance levels, contributing to the increase in the demand for household appliances and other products. We currently operate in 82 cities in Mexico.
Hispanics make up the largest and fastest-growing minority segment in the United States. According to U.S. Census Bureau estimates, in 2010 the Hispanic population reached 50.5 million (16% of the U.S.) and, between 2000 and 2010, grew by 43%, which was four times the growth in the total U.S. population. We operate in two U.S. states, Texas and Illinois, in which approximately 23% of the U.S. Hispanic population resides.
Retail Network
As of December 31, 2012, we owned and operated a total of 380 stores and 11 distribution centers in Mexico and the U.S. 355 stores are located in 82 cities throughout Mexico and 25 stores in the U.S. states of Texas and Illinois. We operate under a dual-store format that encompasses both stand-alone and anchor stores. Anchor stores function as administrative centers that provide customer service, credit processing and other support to our stand-alone stores in the same region. Each of the cities in which we operate has one anchor store or is located close to another city with an anchor store.
The following map and table show the geographical distribution of our stores in Mexico and the United States as of December 31, 2012.
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Mexico Number of State Stores Square Meters Nuevo León 62 83,296 San Luis Potosi 8 9,108 Queretaro 5 5,446 Guanajuato 19 16,992 Veracruz 13 17,415 Toluca 4 5,221 Hidalgo 6 8,374 Villahermosa 8 10,060 Campeche 1 1,240 Yucatán 3 5,041 Quintana Roo 1 1,002 Sonora 11 16,466 Sinaloa 10 12,930 Chihuahua 13 18,987 Baja California 17 26,068 Tamaulipas 32 34,125 Coahuila 26 33,856 Durango 4 4,829 Jalisco 20 19,457 Puebla 9 9,560 Aguascalientes 2 3,735 Michoacan 3 4,350 Colima 2 1,309 Morelos 5 6,693 Zacatecas 2 1,928 69 Cd. de México 66,001 Mexico Total 355 423,489 United States Number of State Stores Square Meters Texas 22 55,154 Illinois 3 9,280 USA Total 25 64,434 TOTAL 380 487,923
Famsa Mexico’s stores are located within the metropolitan areas of cities with a population in excess of 50,000 people and range in size from 400 to 3,000 square meters, with an average of 1,193 square meters per store. Each of our Mexican stores maintains an average of 2,205 products on display. As of the close of 2012, we had a total of 298 stand-alone and 57 anchor stores in Mexico.
Famsa USA has targeted the U.S. Hispanic market by replicating Famsa Mexico’s business model and leveraging the recognition of the “Famsa” brand. As of December 31, 2012, Famsa USA served its customers through a 25 store network, developed both organically and through acquisitions in two U.S. states with large Hispanic populations. Famsa USA’s stores carry an average of 1,750 products on display, and range in size from 1,400 to 3,000 square meters with an average of 2,322 square meters. Our main product categories are furniture, electronics and household appliances. In addition, we also offer differentiated services, such as Famsa-to-Famsa, through which our customers can purchase merchandise at Famsa stores in the U.S. and have it delivered to family members through Famsa Mexico, taking advantage of our infrastructure on both sides of the U.S.-Mexico border.
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Our stores in both Mexico and the United States are characterized by their display method, which is designed to maximize sales and the use of space. Most of our stores have their own warehouse area to ensure that their most popular products are readily available. Each of our stores is outfitted with integrated inventory management and marketing systems and is connected to STORIS®, which is an advanced supply chain management application that provides real-time information on inventory levels, purchase order status and other information to both stores and vendors. Most of our stores are open from 9:00 a.m. to 9:00 p.m., seven days a week (other than December 25 and January 1), except stores located within shopping centers, which are subject to the shopping center’s business hours.
We lease most of the properties that house our stores. As of December 31, 2012, 87.4% of our stores were located on real property owned by independent third parties, 10.5% were located on property leased from related third parties and 2.1% located on property we own. Property leased from related third parties was leased pursuant to long-term lease agreements with our controlling shareholders and various entities controlled thereby, in respect of the retail space used by several of our stores. We select the retail space used by our stores based upon various considerations, including our desire to convey a uniform corporate image and the need for total sales and warehouse areas sufficient to accommodate our increasing number of product lines and services and merchandise volumes.
Expansion Strategy
Our expansion strategy has enabled us to achieve significant growth levels in terms of both our total revenues and net income over recent years. As part of our ongoing expansion strategy, we continue to consider opening additional stores in Mexico, both in cities in which we are already present and in other regions, such as the southeastern part of the country, where we believe there are significant growth opportunities given the number of cities with a population in excess of 50,000 that are not currently served by us or our competitors. We also periodically consolidate our operations and close older, smaller stores and other stores located in areas that are not adequately served by our larger full-format stores. In 2009, for example, we optimized our retail network by selectively closing fifteen stores while opening four larger, full-format stores, resulting in a net square meter reduction of 0.5% in our total sales area and operation savings of over Ps.200 million. Furthermore, in 2011, we adjusted the display area allocation at 50 Mexican stores which had a limited clothing offer in order to boost the productivity of our sales floor space. This change mainly reinforced our furniture category with over 20,000 square meters of exhibition space, equivalent to more than 10 full-format Famsa stores.
The following chart illustrates our growth in terms of our total number of stores in Mexico and the United States during the periods indicated. It also illustrates our growth in terms of our total sales area, in thousands of square meters, in Mexico and the United States during the periods indicated.
600 547 544 541 540 494 500 488 415 400 357 332 314 292 300 271 421 410 410 401 242 390 380 196 346 200 314 287 300 228 245 264 100 185
0
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
Number of Stores Square meters
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Precipitated by the economic downturn beginning in 2008 that adversely affected Hispanic consumers in many of our markets in the United States, we posted operating losses in Famsa stores located in California, Nevada and Arizona and elected in 2012 to close our stores in those states. As a result, in 2012 we began a comprehensive review of Famsa USA’s operations in an effort to improve its profitability. We are consolidating our operations in the profitable regions of Texas and Illinois and have already implemented several initiatives, including increasing our product assortment, enhancing our personalized service, launching an attractive advertising campaign and reducing operating expenses. As of December 31, 2012, we had 22 stores in Texas and 3 stores in Illinois. With regard to the states of California, Nevada and Arizona, we focused our efforts in those states on collecting the remaining balance of our receivables portfolio through kiosks and third party collectors. We believe that our decision to refocus our U.S. operations on Texas and Illinois will bring long-term benefits.
Products and Services
We offer a broad assortment of brand name and third-party domestic and imported durable goods, including furniture, electronics, household appliances, cellular telephones, computers, motorcycles, and clothing, and we seek to constantly expand our product and service offerings. Imports account for approximately 5% of our product portfolio.
Our product and service portfolio includes:
Furniture, including living, dining and bedroom sets, chairs, tables, armoires, headboards, mattresses, cushions, rocking chairs, dressers, book cases and sofas. The main brands carried by our Famsa Mexico stores are Simmons, Selther, Mónaco, Sealy, Emman, Muebles Liz, Demomuebles, Chavoya, MobilKraft, Taosa and Dafel. In addition, our Famsa Mexico stores offer an exclusive brand-name line of furniture manufactured by our subsidiary Expormuebles. Famsa USA furniture brands include Ashley Furniture, Wickline Bedding, Michels & Company, International Furniture, Golden Oaks, Acme Furniture and Sandberg Furniture.
Electronics, including cameras, TV sets, home theater systems, DVD players, as well as sound systems (car stereos, modular stereo systems, and recorders) of international brands such as Sony, Panasonic, LG, Samsung and Toshiba, among others.
Major household appliances, including refrigerators, washers, freezers, dryers, ovens and stoves of internationally-recognized brands such as White Westinghouse, General Electric, Mabe, Maytag, Easy, IEM, Acros, Whirlpool, among others.
Small household appliances, including microwave ovens, toasters, irons, coffee makers, vacuum cleaners, mixers and other small appliances of brands such as Moulinex, Panasonic, Black & Decker, Braun, LG and Osterizer, among others. We also sell fans, air conditioning units and boilers, including those manufactured by Impco, Whirlpool, Lenomex, De´Longhi, LG and Mytek .
Mobile phones and accessories, including those distributed by Telcel, Movistar, Iusacell and Unefon. These are sold by us in our stores and we receive marketing support from the providers. Customers contract with the providers separately.
Computers, including laptops, desktops, tablets, and video game consoles and games, of internationally- recognized brands like Sony, Toshiba, Acer, Dell and HP, among others.
Personal loans, which are unsecured cash loans that our customers use to meet their personal needs, including medical care and house remodeling. These loans are very similar in amount and duration to other credits that we issue.
Motorcycles, including scooters, semiautomatic, chopper, dual purpose, sports, ATV 4 wheels, and work motorcycles. We carry our own brand, Kurazai, which is currently among the top four motorcycle brands in Mexico. Manufacturing takes place in China through our supplier Moto Road, with which we have an exclusivity agreement.
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Others, which include clothing and accessories, sporting goods and other products not captured above.
Leveraging on our large merchandise purchase volumes, we entered into agreements with some of our vendors, under which they manufacture products according to our specifications for inclusion in our stores’ product portfolio. For instance, Lester manufactures the mattresses sold in our stores under our proprietary “CisiAmo” label.
In addition to our conventional product categories described above, our stores offer a variety of other products and services, including the following:
Catalog sales. In 2004, we entered the sales-by-catalog business within the footwear segment, through our subsidiary Verochi. Our customers place their orders either through our call center or through an informal network of independent, door-to-door sales people who are primarily housewives and other women in search of a source of additional income. We offer these independent sales persons the ability to pay for their merchandise purchases in up to eight weeks and to return unsold merchandise. Currently, our Verochi footwear is available only through a limited number of Famsa stores in the northeast region of Mexico, although we plan to expand this business to the rest of the country.
Famsa-to-Famsa. Our Famsa-to-Famsa services allow our customers in the United States to purchase merchandise at any of our Famsa USA stores and have it delivered to others in Mexico through Famsa Mexico, taking advantage of our infrastructure on both sides of the border. Though the product is delivered in Mexico, the sale is treated as a sale in the United States. The products most frequently purchased for delivery in Mexico through this service are household appliances, furniture and electronics. For the year ended December 31 2012, sales under our Famsa-to-Famsa program accounted for 3.4% of Famsa USA’s total revenues.
Electronic transfer of funds and foreign exchange. Our Famsa Mexico stores offer electronic money transfer and foreign exchange services, charging a commission that is payable by the sender. Although we do not directly offer these types of services in the United States, Famsa USA has entered into an agreement with U.S. Dollar Express, Inc. (“DolEx”), under which DolEx provides such services to our customers through kiosks located within our stores. In exchange for these business referrals, DolEx pays Famsa USA a fixed monthly rent for the space used by its kiosks. In addition, we have entered into a series of agreements with DolEx Envíos, SA. de C.V., Western Union and other providers of international money transfer services, under which we deliver their intended recipients, at our Famsa Mexico stores, the proceeds of the transactions processed by them, in exchange for a commission from the provider for each completed transaction. We do not charge any fee or commission to the recipients.
Auto Gran Crédito. In 2005, we began offering personal car financing services under our “Auto Gran Crédito” brand. We finance the purchase of new vehicles only, through a lottery system that requires the customer to pay at the due dates of each of the first six installments on their purchase before they can receive the vehicle. If a customer fails to pay any of such six first installments, then delivery of the vehicle is delayed until the customer’s name is drawn in the lottery. We hold lottery drawings on a monthly basis. As in the case of our other consumer finance services, customers make weekly payments in amounts that vary depending on their individual payment ability over a 48-month period.
BAF Products. Through BAF, we offer a variety of consumer and business finance banking products, which are designed to target the banking needs of our retail customers. Our deposit and investment products include traditional savings and checking accounts and a variety of short- and medium-term investment products, including certificates of deposit that offer a wide range of terms to maturity and returns. Our credit offerings, in addition to consumer financing, include both long- and short-term business loans and revolving credit facilities. For additional discussion of BAF’s products, see “—Banco Ahorro Famsa—Products and Services.”
As part of our business strategy, we continually seek new products and services to offer our customers, and from time to time we introduce new products or services through trials before incorporating them into our portfolio. The products and services offered can vary from store to store based on layout as well as specific demographics and regional and customer preferences.
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Sales
Sales in Cash. Our sales in cash include the sales paid in hard currency and the sales paid by check or credit card. Cash sale prices at our Mexican stores are established at a discount off the suggested retail price, depending on the type of product and the product’s credit sale terms. Cash purchases at our U.S. stores generally are not subject to discounts. We offer to our institutional customers a 30-day credit line and account for these sales in the same manner as sales paid for in cash given the short repayment period associated therewith.
Sales on Credit. As an alternative to traditional sales in cash, we offer to our customers an option to pay in installments, providing weekly, bi-weekly or monthly payments over a three- to 24-month period. The retail price of the merchandise sold in Mexico depends on the market trends of the diverse type of products offered. In addition, our installment program considers various factors, such as the repayment period, the customer’s credit history and the type of product. Sales on credit generally generate higher gross margins than those yielded by our cash sales. In the United States, the purchase price of the merchandise sold on credit is determined based on the suggested retail price plus a finance charge that is reviewed periodically. Because many of our clients do not generally have access to other sources of credit, we believe that our installment program contributes to increasing the number of our potential customers, enhances our existing customers’ purchasing power and, as a result, contributes to our growth in total revenues and net income. As of December 31, 2012, our sales on credit accounted for approximately 81.2% of our total sales.
Our customers can make payments on their accounts at any of our stores and, in the United States, customers also have the option of paying by mail or by website.
We provide sales by category in the table below.
Year Ended December 31 2012 2011 (millions of Pesos) Interest earned from customers 3,677 2,883 Furniture 2,394 2,356 Electronics 1,690 1,949 Appliances 1,394 1,530 Mobile phones 956 1,014 Computer equipment 832 953 Motorcycles 576 432 Clothing and footwear 541 624 Seasonal articles (air conditioners, heaters, etc.) 389 398 Income from commercial banking 175 108 Sport articles 178 149 Small appliances 147 149 Children’s articles and accessories 64 74 Other (1) 1,111 1,245 14,124 13,866
Prices
Our price strategy seeks to offer our products at low, competitive prices in each of our markets. To ensure the maintenance of competitive market prices, our marketing department monitors on a daily basis the prices advertised by our competitors and adjusts and determines the discounts applicable to the price of the merchandise that we sell in cash or on credit. Our store managers are authorized to reduce the cash purchase price of our products to match the prices offered by our competitors, within certain specified parameters.
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Distribution Network
Following our customer service strategy and looking to strengthen our delivery policy, we have developed a series of administrative procedures, information technology systems and personnel training programs to maximize the efficiency of our distribution operations. Starting on January 2011, the QS-LyD Quality Management System, based on the ISO-9000 standard, was implemented to improve operations and productivity in all of our distribution centers in Mexico. The final certification was obtained on December 2011.
We currently operate 9 distribution centers that are strategically located throughout Mexico in the cities of Monterrey, Nuevo León; Hermosillo, Sonora; Chihuahua, Chihuahua; Guadalajara, Jalisco; Tijuana, Baja California; Mexico City, D.F.; Irapuato, Guanajuato; Villahermosa, Tabasco; and Culiacán, Sinaloa. In the United States, we have one distribution center in Texas and one in Illinois.
Our distribution centers receive our merchandise purchases directly from our suppliers and also provide merchandise return processing support to our stores. Upon its arrival at our distribution centers, the merchandise is transported to the point of sale through proprietary routes generated upon automated consolidation of our stores’ daily sales by type of product and destination. To ensure an efficient delivery process, our distribution centers maintain permanent on-line communication with our stores. Famsa also entered into approximately 35 contracts with third parties that provide delivery services to assist Famsa in the delivery of merchandise to other regions.
In the last few years the Company has implemented a supply program for its transfer centers through its own high capacity fleet. This program is employed only on certain routes where a high demand justifies it as necessary: Monterrey – Reynosa, Monterrey – Matamoros, Monterrey – Tampico, Monterrey – Cd. Victoria – Cd. Mante, Monterey – Monclova, Monterrey – Saltillo, Chihuahua – Torreón, Irapuato – San Luis Potosí, Irapuato - Aguascalientes, México – Veracruz, México – Toluca, Culiacán – Mazatlán, Culiacán – Los Mochis.
The current distribution system has allowed a reduction in costs, maintaining a time delivery to customers in less than 48 hours, and ensuring reliability in inventory availability. This has been achieved through the close adherence to productivity and efficiency standards, which has resulted in a 9% reduction in our distribution vehicle fleet in the last two years. On average, 18,933m³ of merchandise leave distribution centers each week, reaching on average 29,765m³ during peak seasons. The use of a bar code system through radio frequency in our distributions centers has contributed to a higher level of assurance in inventory management and control, reaching a 99.8% confidence level. In addition, we have implemented an automatic routing system to increase efficiency of both human and mechanic resources.
We operate various merchandise transfer centers throughout Mexico and the United States, with an average warehouse area of 600 square meters. These centers receive merchandise deliveries from our distribution centers for their subsequent shipment to our stores or our customers’ homes. Our transfer centers are located along certain routes characterized by large merchandise traffic volumes. Additionally, we operate three warehouses in the United States that receive merchandise from our distribution centers for their subsequent delivery to our stores and customers.
For the majority of our sales, we rely on our own fleet of transportation vehicles. As of December 31, 2012, our fleet consisted of 210 vehicles, mainly 3.5-ton trucks, in addition to other trucks equipped with compartments for the proper handling of products. For additional security, our fleet designated to distribution centers in Monterrey and Mexico City, as well as all of our lightweight tractors, are equipped with satellite tracking.
Customer Service
We believe our commitment to excellence in pre-sale and post-sale customer service sets us apart from our competitors and provides us with a distinctive feature upon which to retain and expand our customer base. The broad range of services that we offer our customers includes home delivery and extended guaranties on all our products. We operate a customer service center that is open every day of the year except December 25 and January 1. In addition, each of our anchor stores includes a customer service department that supports our stand-alone stores in the region. In the United States, we employ many bilingual speakers to service our customers.
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Suppliers
A critical element of our marketing strategy is our ability to offer a broad range of high-quality products at low prices to our customers. We secure our merchandise purchase requirements from a network of approximately 450 domestic and international suppliers. We have developed strong business relationships with several of the world’s largest manufacturers of electronic products, as well as with domestic manufacturers of furniture and other products.
In order to centralize our merchandise purchasing process and maximize the efficiency of our distribution network, we have integrated into our retail operations the STORIS® supply chain management system, an advanced software application that provides real-time information on our inventory levels, historic purchases, purchase order status and other information to both our stores and vendors, who can access this system through our web page, thereby enabling us to remain in permanent communication with them. This helps us reduce the risk of inventory shortages and obsolescence, while enabling us to obtain optimum prices and other purchase conditions. We believe that we conduct business with our suppliers on terms that are no less favorable than those of our competitors.
The following table shows Famsa Mexico’s and Famsa USA’s ten largest suppliers and the percentage of our merchandise purchases represented by each such supplier as of December 31, 2012:
Suppliers %
Famsa Mexico: Radiomóvil Dipsa, S.A. de C.V.(TELCEL) 8.8% Sony de México, S.A. de C.V. 7.6% Comercial Acros Whirlpool 7.3% Moto Road, S.A. de C.V. 6.7% Mabe, S.A. de C.V. 6.3% Panasonic de México, S.A. de C.V. 3.8% LG Electronics México, S.A. 3.3% Expormuebles, S.A. de C.V. 2.5% Samsung Electronics Mexico 2.4% Spartan Trading 1.6%
Famsa USA: Ashley Furniture 12.4% LG Electronics INC 7.5% Sandberg Furniture MFG CO INC 6.7% Sony Electronics INC 6.4% Electrolux 6.2% ACME Furniture Industry INC 5.1% Restonic Bedding 4.8% Crown Mark Imports 4.6% E & S International Enterp INC 3.8% Dell Marketing LP 3.4%
Consumer Lending Operations
Sales on Credit and Credit Approval Process
As an alternative to the traditional in-cash sales system, we offer our customers an installment program that provides them with a convenient source of financing to satisfy their credit needs, which helps increase our number of potential customers and enhance the purchasing power of our existing customers, which in turn translates into an increase in our sales volume and profitability. New credit sales accounts and credit approval processes in Mexico are managed by BAF, whereas in the United States they are managed through Famsa, Inc.
The retail price of the merchandise sold in Mexico depends on the market trends of the diverse type of products offered. In addition, our installment program considers various factors, such as the repayment period, the customer’s credit history and the type of product. Sales on credit generally generate higher gross margins than those yielded by our cash sales. In the United States, the purchase price of the merchandise sold on credit is determined based upon a suggested retail price plus a finance charge that is reviewed periodically. Generally, cash purchases in the United States are not subject to discounts. Our installment program calls for weekly, bi-weekly or monthly
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payments over a three- to 24-month period, depending on the customer’s preference and payment ability, which is determined based upon various factors, including the customer’s credit history, monthly income and the purchase price of the merchandise. We also offer several product-specific financing options, including financing for the purchase of clothing items exclusively, which is targeted towards our younger customers. Our customers can make payments on their accounts at any of our stores or, in the United States, customers also have the option of paying by mail or through our website.
As of December 31, 2012, Famsa Mexico, through BAF, had approximately 1.73 million active customer accounts, and Famsa USA had approximately 129,287 active customer accounts. Our Consumer Loans Portfolio in Mexico and our Consumer Loans Portfolio in the United States (continuous operations) totaled Ps.14,947 million and Ps.1,935 million respectively, as of December 31, 2012.
Our customer credit approval process entails the submission of a credit application and certain support documentation, including photo identification and proof of income and address, and the execution of a credit agreement and a promissory note by the customer. As of December 31, 2012, we had centralized the credit underwriting process through three credit centers establishing additional controls and increasing efficiency. This efficiency has been derived by taking advantage of powerful decision engines that provide origination scores for our credit portfolio and by developing projects in order to automate the credit underwriting process. On a regular basis, the Company representative pays a visit to the customer’s residence in order to verify the accuracy of the information contained in the application. Absent adequate proof of income, the application is approved or declined based on the outcome of such visit and of the verification of the customer’s credit references. In general terms, the amount of the weekly installments under our consumer loans does not exceed 30% of the customer’s gross weekly income. The credit approval process, which takes 24 hours in most cases, is managed by anchor stores, and process is run by one of the three credit centers. Sales in excess of a pre-determined threshold amount must be approved by a higher ranked manager at the credit centers. Depending on the customer’s credit worthiness and repayment ability, we may require a down payment of between 5% and 20% of the purchase, and the balance is subject to repayment in weekly, bi-weekly or monthly installments that can be made at any of our stores. If a customer’s application is initially declined, the customer can offer a larger down payment to reduce the amount of the loan and increase the likelihood of approval. This credit verification process yields a valuable data base that is used to improve our customer relations functions.
Our credit agreements and promissory notes provide for interest on the loan at a fixed rate that varies depending on the type of product and the length of the repayment period. In addition, we assess late interest upon any installment not paid when due. The amount of late interest is determined on a daily basis taking into consideration the number and amount of missed payments, until the account is brought to date.
In 2008, we began transferring to BAF our consumer credit accounts. As of the close of 2012, the Company completed the migration of these credit accounts, and any new customer credit accounts will be originated and managed by BAF. Management procedures and collection protocols are not affected by the transfer of credit accounts to BAF, as delinquent credit accounts are transferred back to the originating subsidiary for collection purposes. However, the transfer of credit accounts to BAF will enable our customers to obtain financing and other services directly from BAF. See “―Banco Ahorro Famsa” below.
Account Collection Procedure
Past due accounts in Mexico are maintained at BAF, where, starting the second semester of 2012, they are subject to preliminary collection procedures, until they are over 270 days delinquent, whereupon they are transferred at a discount to the Famsa retail subsidiary where they were originated for additional and, in some cases, legal collection procedures. Such retail subsidiary receives any revenues derived from such collection procedures. Past due accounts in the United States are maintained at Famsa, Inc. throughout the collection process.
Notice Procedures
We operate a call center in Mexico to handle the collection of our past due Mexican and U.S. customer account portfolio. Our call center is staffed with more than 247 representatives. When an account has gone past due for a period of up to 20 days, one of our call center representatives places a telephone call to the relevant customer to remind him or her of the amount due and payable and the date by which payment must be received. In most
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instances, the issue is settled at this point and the customer arranges payment. Otherwise, if the account goes over 20 days past due, a call center representative telephones the customer once again to make payment arrangements. Our call center uses various customized telephone call formats for specific stores, cities and customer profiles. During 2012, BAF implemented a preventive campaign (7 days before payment due date) in order to remind the customer its payment due date to avoid the entry rate. If the account goes one day past due, BAF begins a predictive dialing process (through AVAYA’s predictive dailer), to contact the customer and negotiate a promise to pay and get a payment to return the account back to current portfolio. If after several attempts the customer is not located, BAF Contact Center has a skip process in order to find other phone numbers and contact the client.
In addition to the efforts of our call center, we periodically mail reminders, demands for payment and default notices to our past due account holders through virtual technology (SMS/ Blaster/emails). Default notices are sent on the 15th day from the date on which payment was due and at various intervals thereafter. The procedure for recovery on our past due accounts varies depending on the relevant customer’s risk profile, the amount owed and other factors as we may deem relevant. Any customer whose account has gone past due for over 60 days is assigned to a “door to door” process collection.
Legal Procedures
Generally, we do not resort to litigation until after an account has gone past due for over 120 days. If an account is not settled following notice or personal contact with the customer, we may decide to bring legal action against the customer or transfer the account to an independent collection agency. We base our decisions as to whether to pursue legal action upon a cost/benefit analysis and the likelihood of recovery. If we decide to engage in litigation in Mexico and the outcome of such litigation favors us, we may seize or repossess the relevant merchandise based upon the applicable court resolution. The repossessed merchandise is then sold at a discount through one of our stores. In contrast, our past due account recovery process in the United States provides for the attachment of the customer’s wages rather than the repossession of the merchandise.
Our account collection and recovery procedures in Mexico are subject to the Commerce Code or Código de Comercio, the Consumer Protection Law, and the Federal Civil Code or Código Civil Federal. Our account collection procedures in the United States are subject to the Federal Fair Debt Collection Practices Act, the Federal Trade Commission Act and various other provisions applicable to the retail industry and the origination of and collection on accounts payable. Our uncollectibility level has generally been higher in the United States than in Mexico, primarily as a result of the effects of the U.S. economic downturn on U.S. Hispanic unemployment as well as our ability to repossess merchandise in Mexico.
Promobien
We established our Promobien program in 1983, to offer an alternative source of consumer financing products and services to the employees of the program’s participating entities. Under the Promobien program, employees of participating entities are able to purchase merchandise at our stores or from kiosks installed in their workplace and to have the purchase price of such merchandise deducted from their salaries over a three- to 18- month period. As of December 31, 2012, the Promobien program had approximately 3,885 participants in 67 cities throughout Mexico. The Promobien program’s participants include private sector entities, government entities and universities. As of December 31, 2012, our sales under the Promobien program accounted for 13% of our total net revenues. In 2012, approximately 31% of our sales under the Promobien program were attributable to private sector entities, 36% to government entities and 33% to teachers’ and oil industry workers’ unions.
To be eligible to participate in the Promobien program, a company must have been in operation for at least two years, have a minimum of 50 full-time employees and be based in a city with at least one Famsa store. In turn, the employee must have been employed with the participating entity for at least one year (two years in the case of employees of in-bond manufacturers (maquiladoras) based in the Mexico-U.S. border region) and provide a copy of his or her most recent payroll stub and certain personal identification documentation, together with a pre-approved merchandise purchase order. Any participating individual switching jobs while maintaining an outstanding balance under the account in the Promobien program may have his or her account information forwarded to the new employer and continue to have the applicable amount deducted from his salary, so long as the new employer is a Promobien participant.
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The Company and the relevant participating entity review on a case-by-case basis the amount of financing requested by the latter’s employees, to ensure that such amount does not exceed the employee’s payment ability. The Company provides the participant with a list of all the Promobien accounts established by its employees, the outstanding balances under each such account and the amount to be deducted from the employees’ salaries.
Competition
The retail industry is highly competitive, particularly as it concerns the household appliances, furniture and electronics segments. Both the Mexican and U.S. retail markets are highly fragmented, encompassing large store chains, department stores, household appliance and electronics stores, discount warehouse clubs, factory outlets, online retailers and a broad range of smaller independent specialty stores. In Mexico, we compete primarily with two other large domestic retail chains that have nationwide presence and offer similar consumer financing options, namely Grupo Elektra and Coppel. We also compete with other large retail stores, including Grupo Chedraui, Organización Soriana, Centros de Descuento Viana, Dico, Gala, and with the Mexican subsidiaries or affiliates of international chains such as Wal-Mart and Best Buy. Although to a lesser extent, we also compete with several domestic department store chains, including El Puerto de Liverpool, Grupo Palacio de Hierro, Grupo Hermanos Vázquez y Fábricas de Francia and Sears, which do not have national presence, are targeted towards other population segments and offer less-flexible and other non-consumer finance options, as well as with informal or “black” markets and street vendors. In the United States, we compete with large U.S. retailers, such as Ashley Furniture, Rooms to Go, Best Buy and Sears, on cash sales, and with local and regional retailers that directly target U.S. Hispanics with in-house credit, such as Conn’s, Continental, LDF and Lacks.
We believe that our focus in the furniture, electronics and household appliances segments, our broad geographical presence and our ability to offer competitive pricing and financing options to our customers, backed by our 42 years of experience and what we believe to be the broad market recognition enjoyed by the Famsa brand, provide us with a significant competitive advantage based upon which we continue to grow and expand.
In addition, we believe our pre- and post-sale personalized customer service and our convenient locations coupled with our unique banking services provide us with a competitive advantage. Furthermore, we employ many promotional programs, including, among others, our “Gran Credito” and “Cambaceo” (or “canvassing”) door-to- door sales programs coupled with a nationwide marketing campaign. We also provide convenient options for our customers to manage their credit account payments, including through our Promobien program, which gives customers the option to make payments on their Famsa credit accounts through an automatic payroll deduction with participating employers.
The banking segment in Mexico is also highly competitive. For more information on the competition in the banking segment in Mexico, see “Banco Ahorro Famsa—Competition.”
Banco Ahorro Famsa
Overview
BAF, our own retail bank, was established in 2006 as part of a plan to maximize our consumer finance operations and complement our product portfolio with banking services and loan products and, in addition, to serve as a source of funding for Famsa’s credit sales and operations. BAF began operations in Monterrey in January 2007. According to the CNBV, as of December 31, 2012, BAF operated one of the ten largest banking branch networks in Mexico, with 286 branches located within Famsa Mexico stores and 18 independent banking branches, and managed an aggregate amount of 2.9 million savings and credit accounts. Combined, our 304 branches now have over 1,000 tellers and 675 service executives to serve our customers’ banking needs.
Within our overall business strategy, BAF seeks to achieve the following objectives:
Ensure a constant and reliable source of low-cost, short-term funding through customer deposits and interbank loans to finance our Mexican consumer finance operations, which we had traditionally financed through a combination of credit facilities with banking and other financial institutions and the issuance of debt; and
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Foster the cross-selling of products and services within the Company with the introduction of personal loans and other financial services to our Mexican customers, who typically do not have access to credit or other financial services from the traditional banking sector.
As of December 31, 2012, BAF was the source of 72.2% of our net funding and BAF’s average cost of funding was 5.2%. Initially funded in part through financial intermediaries and interbank loans, as of December 31, 2012, BAF was funded 99.9% through its own deposits in the form of savings and checking accounts, certificates of deposit and other consumer investment products. The combination of our diversified funding platform with our risk management experience and knowledge of the retail industry represents a key competitive advantage.
Through BAF, we are achieving our objective of providing a viable source of funding for our consumer credit operations in Mexico. At the same time, the diverse financing options that make up our bank deposit base, including savings and checking deposits, certificates of deposit and other investment vehicles, mitigate our exposure to conventional credit markets and have begun to reduce significantly our cost of financing. BAF offers a growing assortment of its own financial products and services, including a variety of personal, commercial and microcredit loans. As of December 31, 2012, according to a report published by the CNBV, BAF’s total loan portfolio was almost three and a half times larger than that of Banco Wal-Mart’s and more than one and a half times larger than Bancoppel’s.
The credit quality of trade receivables, both with respect to loans offered by BAF and our consumer financing through our retail stores, is assessed based on the historical default rates of the counterparties and is analyzed as follows: As of December 31, Group Jan 01, 2011 2011 2012 (thousands of Pesos) A 13,634,965 14,317,230 14,223,591 B 1,184,715 2,595,278 3,621,844 C 1,457,874 1,942,458 2,405,177 16,277,554 18,854,966 20,250,612
Group A - very low risk customers who have regularly met their payment commitments. Group B - low risk customers who have made their payments on dates after the payment deadline. Group C - medium risk customers who made their payments inconsistently.
Products and Services
BAF offers traditional deposit and other banking services through branches located within Famsa Mexico’s stores, taking advantage of their existing credit processing and customer service facilities and infrastructure, such as internet banking services, money orders, ATMs, POS terminals and other financial services.
In addition, BAF has incorporated our pre-existing consumer finance operations and is engaged in an ongoing process of developing its products and services, expanding its bank deposits base and improving its systems and procedures, including developing an information technology and risk management platform to meet regulatory requirements, competing in the Mexican financial industry and supporting its expansion plans. Some examples of the actions taken towards this objective are: i) implementation and continuous upgrading of card core and bank core systems based on the IBM e-Series platform served by FISERV, ii) implementation of state of the art Call Center telephone technology by Avaya, iii) implementation of ERP SAP to support accounting, human resources and CRM processes, iv) web based services to offer internet banking and smart phone services to support origination and collections processes and v) implementation of SAS to develop information analysis and business intelligence.
BAF’s financial products include traditional demand deposit accounts and short- and medium-term investments, including certificates of deposit, personal loans and business loans, each of which is described below.
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Demand Deposits
Famsa Ahorro. BAF offers a traditional savings account that pays between 1%–3% interest based on the deposit amount, requires no annual fee and may be opened with a minimal amount (Ps.1). It offers free withdrawal and deposit service at any BAF branch along with free transfers among BAF accounts. Same-day transfers to accounts of other persons or accounts at other banks are offered for a fee. Withdrawals from certain other banks and third-party ATMs are provided for a fee after the first three transactions each month, which are offered for free.
Mi Chequera Famsa. BAF’s checking feature provides essentially the same features as the Famsa Ahorro with the exception that it requires a higher minimum deposit (Ps.1,000). Checks are provided without fee.
Ahorro Niños. BAF offers savings accounts targeting first-time account holders, adolescents and children, with similar features as the Famsa Ahorro, but additionally requires parental consent.
Payroll. BAF offers a Payroll and savings account that requires no annual fee, no minimum average balance and no account management fee.
Short- and Medium-Term Investments
InverFamsa and InverFamsaPlus. BAF’s fixed rate investment products provide a variety of options including 15 different possible terms under one year, different associated rates of return and the option to reinvest returns, to increase the amount of the investment during a term, to receive monthly or end- of-term interest payments and to withdraw principal during the term of the investment for a reduction in the final return. Minimum required deposits vary from Ps.4,000 to Ps.5,000 (U.S.$308.50 to U.S.$385.63) depending on the product.
InverCedeFamsa. BAF offers fixed-rate certificates of deposit with 6, 9, 12, 18 and 24-month terms, offering respectively greater returns for longer terms. Interest may be paid out monthly or reinvested at the customer’s option, and the minimum deposit is Ps.25,000 (U.S.$1,928.15).
The following table sets forth the maturity profile of our deposits, stated in millions of Pesos:
Jan 1, 2011 Dec 31, 2011 Dec 31, 2012 Demand 5,050 57% 3,039 29% 2,505 21% 0–6 months 1,426 16% 2,413 23% 2,732 23% 6–12 months 1,221 14% 2,077 20% 3,145 26% >12 months 1,210 13% 2,907 28% 3,617 30% Total 8,907 100% 10,436 100% 11,999 100%
Credit
Tarjeta Famsa. BAF offers a credit card that may be used for purchases at any Famsa store or for personal loans, Préstamos en Efectivo, through cash withdrawals. Cardholders are subject to our credit approval procedures only at the time of issuance of the card, rather than at the time of purchase. Payments and cash withdrawals (personal loans) on the card may be made at any BAF branch. BAF offers fixed-rate personal loans through Tarjeta Famsa for up to a term of 18 months. Besides including no pre-payment penalty, the personal loan product includes disability, life and unemployment insurance covering principal amounts up to Ps.25,000, Ps.25,000 and Ps.5,000 (U.S.$1,928.15, U.S.$1,928.15 and U.S.$385.63), respectively.
Crédito PYME. BAF offers both fixed-term and revolving small- and medium-sized business loans with a variety of features including terms from six to 60 months, fixed interest rates, commission-free origination and a number of payment options including amortization and bullet payments.
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Subject to the exceptions provided under Article 10 of the IPAB, all of BAF’s deposit accounts benefit from the guarantee of the IPAB covering deposits up to the amount of 400,000 UDIs (or approximately Ps.1.9 million (U.S.$150,384) as of December 31, 2012).
Competition
BAF competes with various Mexican banks and other financial institutions that cater to the same segment of the Mexican population and offer similar products and services. After 5 years of operation, BAF is already one of the ten largest banking branch networks in Mexico, according to the CNBV, as of December 31 2012, and enjoys a number of competitive advantages related to its products and synergies with Famsa Mexico’s retail operations.
BAF has faced and will continue to face strong competition from banking institutions associated with Famsa Mexico competitors in the retail market, such as Banco Azteca, S.A., institución de banca múltiple, the consumer financing subsidiary of Grupo Elektra, Bancoppel, S.A., institución de banca múltiple, the consumer financing subsidiary of Coppel, and Banco Wal-Mart de México, the consumer financing subsidiary of Wal-Mart, each of which targets customers in Famsa’s Mexican population segments. According to information published by the CNBV, several of BAF’s more direct competitors currently offer more banking branches. As of December 31, 2012, Banco Azteca operated 2,048 branches, Bancoppel 787 branches and Banco Wal-Mart 263 branches, as compared to BAF’s 304 branches. Additionally, stand-alone bank institutions (not associated with any retailer) such as Banorte, Bancomer and Santander, have recently shown an increased interest in lower-income segments of the population.
Competition in the consumer finance business may increase significantly as a result of the introduction of new banking and other financial products, such as credit card and personal loans targeted towards the low-middle income class segment of the population, which constitutes our primary target customer base. Any increase in competition could affect our market position if our competitors are able to offer financing terms more attractive than ours.
Commercial banks in Mexico also compete in the retail market with non-banking institutions known as Sofoles and Sofomes, which focus primarily on offering consumer and mortgage loans to middle- and low-income individuals. Sofoles and Sofomes are Mexican corporations (sociedades anónimas) that expressly include as their main corporate purpose in their by-law, engaging in lending and/or financial leasing and/or factoring services, but are prohibited from engaging in many banking operations, including foreign trade financing, taking deposits, offering checking accounts and engaging in foreign currency operations. Until recently, the commercial credit market for middle and low-income individual customers has been serviced almost exclusively by Sofoles and Sofomes; however, traditional banks have begun to extend their credit services to the markets previously dominated by Sofoles and Sofomes.
In July 2006, the Mexican Congress enacted certain reforms to deregulate lending activities, including financial leasing and factoring activities, pursuant to which, the Ministry of Finance and Public Credit has ceased to authorize the creation of new Sofoles, and all existing Sofol authorizations will automatically terminate on July 19, 2013. On or prior to that date, existing Sofoles must cease operating as a Sofol. Failure to comply with this requirement will result in dissolution or liquidation of the Sofol. Existing Sofoles also have the option of converting to Sofomes or otherwise extending their corporate purposes to include activities carried out by Sofomes.
Sofomes that are affiliates of Mexican credit institutions (i.e., private or public banks) or of the holding companies of financial groups that hold a credit institution are regulated and supervised by the CNBV, and are required to comply with a number of provisions and requirements applicable to credit institutions, such as capital adequacy requirements, risk allocation requirements, related party transactions rules, write-offs and assignment provisions, reporting obligations as well as anti-money laundering provisions. All other entities whose main purpose is engaging in lending, financial leasing and factoring activities are non-regulated Sofomes. Non-regulated Sofomes are not subject to the supervision of the CNBV, and therefore are not subject to the same extensive federal banking regulation, including capitalization, reserve requirements and anti-money laundering provisions. As a result, certain of our competitors may have advantages in conducting certain businesses and providing certain services because they are subject to fewer regulations.
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At the beginning of 2008, the Mexican Law of Credit Institutions was modified to, among other things, grant authority to the CNBV (with the assistance of other regulators, but with CNBV having primary responsibility) to authorize the creation of banks solely to engage in certain activities (which is intended to incentivize competition, reduce required capital and improve the attention to certain industries and regions) in contrast to so-called “universal” banks. As a result of the reduced capital requirements and potential reduced operational costs that are likely to apply to this type of bank, there could be increased competition as a result of the creation of more banks to target specific market niches.
Our banking services target a segment of the population that has historically had limited access to the regulated banking sector. Despite the recent growth in the number of competitors pursuing Mexico’s middle and low-middle income segments, banking service penetration among Mexicans is significantly low. Based on our estimates, approximately 60% of Mexico’s middle and low-middle income segments have never used banking services.
BAF has positioned itself by focusing on our target customers’ needs to develop several key competitive advantages, which include a comprehensive portfolio of simple banking products, an accessible network of banking branches with extended hours of operation and a number of Famsa synergies. Given the lack of access to financial services of our target market, BAF offers a wide variety of simple, straight-forward deposit and credit products that are intended to simplify our customers’ selection process. Furthermore, BAF’s 304 banking branches make up one of the top-ten banking branch networks in Mexico. The integration of our BAF branches within our retail stores provides an inviting environment for our customers and allows us to offer longer hours of operation than other banking services providers. Lastly, with the implementation of independent banking branches across the country, BAF will also be able to target customers’consumption needs of durable good categories, since Grupo Famsa’s door-to-door sales program “Cambaceo” (or “canvassing”) will also be offered through these banking branches.
Synergies between BAF and Famsa’s Mexican retail operation provide unique competitive advantages. For instance, as a result of the credit evaluation and monitoring to which our existing retail credit customers are already subject, we believe, we are in a better position than other competitors to cross-sell first-time banking services and develop products tailored to our target customers’ needs. Additionally, we believe BAF benefits from the Famsa brand’s widespread recognition and good standing among its target segment. Furthermore, the integration of BAF with our retail operations provides a variety of cost-saving synergies, including rent expense, utilities and joint product marketing through direct mail, telemarketing, cashier pitches, television or advertising on bank statements.
In order to comply with the applicable bank secrecy provisions, we have established different operating systems, which restrict information to be shared between our retail business and BAF. The only information of BAF’s loan portfolio that is provided to Famsa is the information regarding specific loans, which are effectively transferred to Famsa as part of the credit transfer-back process of account receivables that are more than 120 days past due. See “—Regulation—Bank Secrecy.”
Other Businesses
Wholesale Business
Famsa operates its wholesale business, which specializes in sales of home appliances, electronics and household goods, through its subsidiary, Mayoramsa. For the year ended December 31, 2012, our wholesale segment generated Ps.640.5 million in total revenues, or 4.5% of our total revenues.
Our customers in this segment consist principally of small and mid-sized furniture stores. As of December 31, 2012, we had approximately 1,000 customers.
As of December 31, 2012, Famsa operated 17 warehouses in the principal metropolitan areas of 17 Mexican states, including Veracruz, Guadalajara, Monterrey, Mérida, Puebla, Culiacán, Torreón, Tijuana, Tuxtla Gutiérrez, León, México, San Luis Potosí, Hermosillo, Reynosa, Chihuahua, Chilpancingo and Tampico. As of December 31, 2012, the floor space of these warehouses totaled 11,060 square meters. Each warehouse includes a customer service department responsible for, among other things, issues relating to product guarantees. Once our distribution centers receive merchandise, they deliver it directly to our customers. Our delivery routes are determined using a database generated from sales occurring throughout the day at our wholesale locations.
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Mayoramsa customers can pay for goods in installments for periods ranging from 30 to 90 days. Before each sale on credit, customers are subject to a credit investigation, which the Company conducts from the nearest distribution center. Collections are carried out at the premises of customers regularly and by the same vendor that performed the initial sale.
Mayoramsa offers a wide range of wholesale products, mainly home appliances, electronics, heaters, air conditioners, household goods and bicycles. Products can be domestic or imported, and most are of recognized brands. Most wholesale products we sell have a manufacturer’s guaranty.
In addition, we sell a portion of the production of our Monterrey-based subsidiary, Expormuebles, through our wholesale operations. We sell a small portion (approximately 2%) of Expormuebles production through our wholesale division Mayoramsa. It focuses mainly on small stores and door-to-door sales.
As of December 31, 2012, our sales of wholesale products were distributed in the following percentages: home appliances, 54.9%; electronic devices, 24.6%; air conditioners and heaters, 10.3%; and household goods accounted for 10.2% of total wholesale product sales.
Furniture Manufacturing
Through our Monterrey-based subsidiary Expormuebles, we produce three lines of home furniture that are sold exclusively in our Famsa stores: living room sets, dining room sets and bunk beds. We also sell a portion of Expormuebles’ production through our wholesale operations.
Expormuebles’ production facilities have total area in excess of 10,000 square meters, with capacity to produce 65,760 living room and dining room sets and 142,320 tubular items annually.
Marketing
Our marketing strategy seeks to strengthen our customer base at our existing stores, assist in the development of a solid clientele for our new store openings and increase the demand for additional locations, by emphasizing our broad catalog of low-priced, high-quality merchandise always in stock, easily accessible consumer finance products, convenient locations, excellence in customer service and high levels of customer satisfaction. As part of our marketing strategy, we are constantly engaged in aggressive advertising efforts, primarily through prime- time TV commercials and the distribution of fliers, which are designed to allow us flexibility to adapt to the size and profile of each particular market.
In 2011 and 2012, our marketing and advertising expenses (consolidated basis) accounted for 2.0% and 2.4% respectively of our total sales.
In addition, our web site, www.famsa.com, enables our clients to make on-line purchases and perform research with respect to our products for their subsequent purchase from our stores. In 2012, we continued to develop the following strategic areas of famsa.com: the overall shopping experience, the shopping cart feature, development of additional payment methods and privacy & data security. We also consolidated our business relationships with key partners, including Banamex, Blockbuster and Estafeta, and for the second consecutive year, we had an increase in the total number of visits to our website, which totaled 6.3 million, a 72.2% growth compared to 2011. Although on-line sales currently represent a relatively small percentage of our total retail sales, we believe that our web site helps to foster consumer loyalty and encourages consumer spending.
In recent periods, we have focused our marketing and advertising efforts on countering the effects of the decrease in consumer spending as a result of the economic crisis, by engaging in outdoor advertising to redirect the flows of street traffic to our stores and introducing cross-business promotions.
Systems
We have traditionally made significant capital investments in the acquisition, installation and upgrade of IT (Information Technology) and software applications. In 2011 and 2012, we invested Ps.25.6 million and Ps.20.8 million, respectively, in our systems. Our capital investments in IT from period to period is primarily a reflection of
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our growth in terms of number of stores, the creation of the Bank division and a number of new functionalities and business initiatives in order to offer more and better services to our customers.
We have a long term contract pursuant to which IBM will provide the necessary infrastructure for the optimal operation of our enterprise resource planning (ERP) for the Commercial Division and SAP systems for Famsa.
Our communications network that links all of our branches, distribution centers and warehouse facilities, enables them to maintain ongoing, real-time communication to operate and maximize their processes and support. We have a long term contract with one of the main carriers in Mexico to get the service, including the update and maintenance for the equipment (e.g., routers and switches) and the management to monitoring and secure the optimal service levels.
The ERP for the commercial division is STORIS (www.storis.com) based in US, operates on IBM pSeries platform (AIX) housed in Apodaca-Triara (IBM) including the recovery capacity.
BAF network architecture is built around an IBM eSeries system with immediate recovery capacity, which is housed in Apodaca-Triara and Redit-Monterrey. The BAF’s Core Banking System (ICBS) and the consumer credit system (CMS) were provided and are supported by FISERV (www.fiserv.com) based in the U.S. We also use additional applications to complete the bank institution requirements and meet the Mexican regulations.
Human Resources and Finance for the Famsa divisions are using SAP products and operating on IBM pSeries platform (AIX) housed in Apodaca-Triara (IBM) including the recovery capacity.
Trademarks
As of December 31, 2012, we owned the rights to more than 1,331 registered trademarks and trade names used in connection with our business operations, including, among others, “Famsa,” “Famsa.com,” “Auto Gran Crédito Famsa,” “CisiAmo,” “De Famsa a Famsa” (Famsa-to-Famsa), “GarantiMax,” “Giovanni Paolo,” “Gran Crédito Famsa,” “Verochi”, “Kurazai” and “Kultur."
In addition, pursuant to certain agreements with some of our vendors and suppliers, we hold licenses to various trademarks used in connection with the sale and distribution of their products at our stores.
Regulation
This section contains a summary of the legal regime applicable to our retail and consumer finance operations in Mexico and the United States, as well as the laws and regulations applicable to BAF.
Operations in Mexico
Securities Market Law
Corporations whose equity and debt securities are registered with the RNV and trade on the BMV, such as the Company, are subject to the Mexican Securities Market Law and the rules and regulations issued thereunder and are otherwise governed by the provisions of the General Law of Commercial Corporations (Ley General de Sociedades Mercantiles).
Consumer Protection Laws
Our consumer financing services not carried out through BAF are subject to the Federal Consumer Protection Law (Ley Federal de Protección al Consumidor), which promotes and protects consumer rights and seeks to establish equality and legal certainty in relationships between consumers and commercial suppliers.
On July 29, 2010, Article 17 of the Mexican Constitution was amended in order to allow class actions to be brought in federal courts in connection with civil actions on matters related, among others, to consumer protection. Consequently, on August 30, 2011, the Federal Code of Civil Procedure and the Federal Law for Consumer Protection (Ley Federal de Protección al Consumidor), among others, were amended to incorporate class actions.
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Such amendments became effective on March 1, 2012. As of the date of this offering circular, no class action has been resolved in connection with consumer protection matters.
Collection Procedures
Our account collection and recovery procedures in Mexico are subject to the Commerce Code, the Consumer Protection Law and the Federal Civil Code.
Legal Regime Applicable to Banco Ahorro Famsa
General
As a Mexican banking institution, BAF is subject to regulation and oversight by the SHCP, Mexico’s Central Bank (Banco de México), the CNBV, the IPAB and the National Commision for the Protection and Defense of Users of Financial Services (Comisión Nacional para la Protección y Defensa de los Usuarios de Servicios Financieros, or “CONDUSEF”).
BAF’s operations are primarily subject to the Mexican Law of Credit Institutions (Ley de Instituciones de Crédito), the General Provisions Applicable to Credit Institutions (Disposiciones de Carácter General Aplicables a las Instituciones de Crédito) (the “General Bank Rules”), as amended, and other rules and regulations issued by the SHCP, Banco de México, the CNBV and the IPAB.
The Ministry of Finance and Public Credit, either directly or through the CNBV, the role of which has been expanded and enhanced, possesses broad regulatory powers over the banking system. Banks are required to report regularly to the financial regulatory authorities, principally the CNBV and Banco de México. Reports to bank regulators are often supplemented by periodic meetings between senior management of the banks and senior officials of the CNBV. Banks must submit their unaudited monthly and quarterly and audited annual financial statements prepared in accordance with accounting standards and practices established by the CNBV to the CNBV for review and must publish on their website and in a national newspaper their unaudited quarterly balance sheets and audited annual balance sheets. The CNBV may order a bank to modify and republish such balance sheets.
The CNBV has authority to impose fines for failing to comply with the provisions of the Mexican Law of Credit Institutions or regulations promulgated thereunder. In addition, Banco de México has authority to impose certain fines and administrative sanctions for failure to comply with the provisions of the Ley del Banco de México (the “Banco de México Law”) (and regulations that it promulgates and the Law for the Transparency and Ordering of Financial Services (Ley para la Transparencia y Ordenamiento de los Servicios Financieros), particularly as violations relate to interest rates, fees and the terms of disclosure of fees charged by banks to clientele. Violations of specified provisions of the Mexican Law of Credit Institutions are subject to administrative sanctions and criminal penalties.
On July 11, 2008, Banco de México published new rules that regulate the issuance and use of credit cards and that include certain card user protection provisions.
Relevant Provisions Applicable to BAF
Among other things, under the Mexican Law of Credit Institutions, the General Bank Rules and other rules and regulations, Mexican banks are subject to the following provisions:
Licensing Requirements. Authorization of the Mexican government is required to conduct banking activities. The CNBV, subject to the prior favorable opinion of Banco de México, has the power to authorize the establishment of new banks, subject to minimum capital standards, among other things. Approval of the CNBV is required prior to the opening, closing or relocating offices, including branches, of any kind, outside of Mexico, transfer of assets or liabilities between branches or any amendments to a bank’s bylaws or increase or decrease of its capital.
Capitalization. The minimum equity capital requirement applicable to full-service commercial banks (including newly-chartered banks) is 90,000,000 UDIs (approximately Ps.438.7 million as of December 31, 2012).
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Banks are required to maintain a net capital (capital neto) relative to market risk, risk-weighted assets incurred in its operation and operations risk, which may not be less than the capital required in respect of each type of risk. The Mexican Law of Credit Institutions, the General Rules for Banks as well as the Rules for Capitalization Requirements of Commercial Banks and National Credit Institutions (Reglas para los requerimientos de Capitalización de las Instituciones de Banca Múltiple y las Sociedades Nacionales de Crédito, Instituciones de Banca de Desarrollo) (the “Mexican Capitalization Requirements”) set forth the methodology to determine the net capital relative to market risk, risk-weighted assets and operations risk. Under the relevant regulations, the CNBV may impose additional capital requirements and Banco de México may, with the CNBV’s recommendation, grant temporary exceptions to such requirements.
The Mexican Capitalization Requirements provide capitalization standards for Mexican banks similar to international capitalization standards, particularly with respect to the recommendations of the Basel Committee on Banking Supervision (although Mexico does not fully implement such requirements and has not fully implemented the last amendment).
Under the Mexican Capitalization Requirements, Mexican banks are required to maintain a minimum capital ratio of 10.0% to avoid the imposition of any of the corrective measures described below. Aggregate net capital consists of a basic portion (parte básica) or Tier 1 capital and an additional portion (parte complementaria) or Tier 2 capital of the net capital. At all times, Tier 1 capital must represent at least 50.0% of our aggregate net capital. Failure to meet the capital requirements may result in the imposition of corrective measures as described below. We are in compliance with all applicable Mexican Capitalization Requirements.
Every Mexican bank must create certain legal reserves (fondo de reserva de capital), included as part of Tier 1 capital. Banks must allocate 10.0% of their net income to such reserve each year until the legal reserve equals 100.0% of their paid-in capital (without adjustment for inflation). The balance of net income, to the extent not distributed to shareholders, is added to the bank’s retained earnings account. Under Mexican law, dividends may not be paid out of the legal reserve. As of December 31, 2012, BAF had legal reserves of Ps.64 million and had paid-in capital of Ps.1,540 million (without adjustment for inflation).
Intervention. The CNBV may declare managerial intervention (intervención) of a banking institution pursuant to Articles 138 through 149 of the Mexican Law of Credit Institutions and in such case the Governing Board of IPAB will appoint a peremptory manager (administrador cautelar) (the “CNBV Intervention”).
A CNBV Intervention pursuant to Articles 138 through 149 of the Mexican Law of Credit Institutions, will occur only when (i) during a calendar month, the capitalization ratio of bank falls below a level equal to or above the minimum capital ratio required and thereby does not comply with the Mexican Capitalization Requirements; or (ii) a bank (a) does not comply with any minimum corrective measure ordered by the CNBV pursuant to Article 134 Bis 1 of the Mexican Law of Credit Institutions, (b) does not comply with more than one additional special corrective measures ordered by the CNBV pursuant to such Article 134 Bis 1 or (c) consistently does not comply with any such additional corrective measures ordered by the CNBV. In addition, a CNBV Intervention may occur when the CNBV, in its sole discretion, determines the existence of irregularities that affect the stability or solvency of the bank, the public interest or the bank’s creditors.
During a CNBV Intervention, the peremptory manager appointed by IPAB will assume the authority of a bank’s Board of Directors. The peremptory manager will have the authority to represent and manage the bank with the broadest powers under Mexican law and will not be subject to control by the bank’s Board of Directors or its shareholders. The appointment of the peremptory manager must be registered in the Public Registry of Commerce of the corresponding domicile.
IPAB. The Mexican Law of Credit Institutions, the Banking Deposit Insurance Law (Ley de Protección al Ahorro Bancario, the “IPAB Law”), which became effective January 20,1999, provides for the creation, organization and functions of the IPAB, the new bank savings protection agency. The IPAB is a decentralized public entity that regulates the financial support granted to banks for the protection of bank deposits. The IPAB may grant financial support to banking institutions only in exceptional circumstances.
According to the IPAB Law, the IPAB will manage and sell the loans, rights, shares and any other assets that it acquires from banks in the performance of its activities to maximize their recovery value. The IPAB must
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ensure that the sale of such assets is made through open and public procedures. The Mexican President is required to present annually a report to Congress prepared by the IPAB with a detailed account of the transactions conducted by the IPAB in the prior year.
The IPAB has a governing board of seven members: (i) the Minister of Finance and Public Credit, (ii) the Governor of Banco de México, (iii) the President of the CNBV and (iv) four other members appointed by the President of Mexico, with the approval of two-thirds of the Senate.
The deposit insurance to be provided by the IPAB to a bank’s depositors will be paid upon determination of the dissolution and liquidation or bankruptcy of a bank. The IPAB will act as liquidator or receiver in the dissolution and liquidation or bankruptcy of banks either directly or through designation of a representative. The IPAB will guarantee obligations of banks to certain depositors and creditors only up to the amount of 400,000 UDIs (or approximately U.S.$150,384 as of December 31, 2012), per person per bank.
Banks have the obligation to pay the IPAB ordinary and extraordinary contributions as determined from time to time by the Governing Board of IPAB. Under the IPAB Law, banks are required to make monthly ordinary contributions to the IPAB, of no less than 0.4% of the average daily outstanding liabilities of the respective bank in a specific month, less (i) holdings of term bonds issued by other commercial banks; (ii) financing granted to other commercial banks; (iii) financing granted by the IPAB; and (iv) subordinated debentures that are mandatorily convertible in shares representing the capital stock of the banking institution.
The IPAB’s Governing Board also has the authority to impose extraordinary contributions in the case that, given the conditions of the Mexican financial system, the IPAB does not have available sufficient funds to comply with its obligations. The determination of the extraordinary contributions is subject to the following limitations: (i) may not exceed, on an annual basis, the amount equivalent to 0.003% multiplied by the total amount of the liabilities outstanding of the banking institutions that are subject to IPAB contributions and (ii) the aggregate amount of the ordinary and extraordinary contributions may not exceed, in any event, on an annual basis, an amount equivalent to 0.008% multiplied by the total amount of the liabilities outstanding of the applicable banking institution.
The Mexican Congress allocates funds to the IPAB on a yearly basis to manage and service the IPAB’s liabilities. In emergency situations, the IPAB is authorized to incur additional financing every three years in an amount not to exceed 6% of the total liabilities of Mexican banks.
In July 2006, certain amendments to the IPAB Law and the Financial Groups Law (Ley para Regular las Agrupaciones Financieras) were enacted by the Mexican Congress to provide an improved legal framework to resolve and grant financial support to commercial banking institutions undergoing financial difficulties.
Revocation of Banking License. If the CNBV revokes a bank’s license to organize and operate as a banking institution, the IPAB’s Governing Board will determine the manner under which the corresponding banking institution shall be dissolved and liquidated in accordance with Articles 122 Bis 16 through 122 Bis 29 of the Mexican Law of Credit Institutions. In such a case, the IPAB’s Governing Board may determine to undertake the liquidation through any or a combination of the following transactions: (i) transfer the liabilities and assets of the banking institution in liquidation to another banking institution; (ii) constitute, organize and manage a new banking institution owned and operated directly by the IPAB, with the exclusive purpose of transferring the liabilities and assets of the banking institution in liquidation; or (iii) any other alternative that may be determined within the limits and conditions provided by the Mexican Law of Credit Institutions that the IPAB considers as the best and least expensive option to protect the interest of bank depositors.
Causes to Revoke a Banking License. The following are among the most common events upon which the CNBV may revoke a banking license:
(1) if the banking institution is dissolved or initiates liquidation or bankruptcy procedures (concurso mercantil or quiebra);
(2) if the banking institution (a) does not comply with any minimum corrective measures ordered by the CNBV pursuant to Article 134 Bis 1 of the Mexican Law of Credit Institutions; (b) does not comply with any special corrective measure ordered by the CNBV pursuant to such Article 134
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Bis 1; or (c) consistently does not comply with an additional special corrective measure ordered by the CNBV;
(3) if the banking institution does not comply with the minimum capital ratio required under the Mexican Law of Credit Institutions and the Mexican Capital Requirements;
(4) if the banking institution defaults with respect to any of the following payment obligations (a) in the case of obligations in an amount greater than 20,000,000 UDIs or its equivalent: (1) loans granted by other banking institutions, foreign financial institutions or Banco de México; or (2) payments of principal or interest on securities issued that have been deposited with a clearing system, and (b) in the case of obligations in an amount greater than 2,000,000 UDIs or its equivalent, if during two business days or more, (1) it does not pay its obligations owed to one or more participants in clearing systems or central counterparts, or (2) it does not pay in two or more of its branches, banking deposits claimed by 100 or more of its clients.
Upon publication of the resolution of the CNBV revoking a banking license in the Official Gazette of Mexico and two newspapers of wide distribution in Mexico and registration of such resolution with the corresponding Public Registry of Commerce, the relevant banking institution will be dissolved and liquidation will be initiated. Upon liquidation or the declaration of bankruptcy (concurso mercantil or quiebra) of a banking institution, the IPAB shall proceed to make payment of all ‘‘guaranteed obligations’’ of the relevant banking institution.
Obligations of a banking institution in liquidation that are not considered “guaranteed obligations” pursuant to the IPAB Law, and that are not effectively transferred out of the insolvent banking institution, will be treated as follows:
(1) term obligations will become due (including interest accrued);
(2) unpaid principal amounts, interest and other amounts due in respect of unsecured obligations denominated in Pesos or UDIs will cease to accrue interest;
(3) unpaid principal amounts, interest and other amounts due in respect of unsecured obligations denominated in foreign currencies, regardless of their place of payment, will cease to accrue interest and will be converted into Pesos at the prevailing exchange rate determined by Banco de México;
(4) secured liabilities, regardless of their place of payment will continue to be denominated in the agreed currency, and will continue to accrue ordinary interest, up to an amount of principal and interest equal to the value of the assets securing such obligations;
(5) obligations subject to a condition precedent, shall be deemed unconditional; and
(6) obligations subject to a condition subsequent, shall be deemed as if the condition had occurred, and the relevant parties will have no obligation to return the benefits received during the period in which the obligation subsisted.
Liabilities owed by the banking institution in liquidation will be paid in the following order of preference: (i) liquid and enforceable labor liabilities, (ii) secured liabilities, (iii) tax liabilities, (iv) liabilities to the IPAB, as a result of the partial payment of obligations of the banking institution supported by the IPAB in accordance with the Mexican Law of Credit Institutions; (v) bank deposits, as well as any other liabilities in favor of the IPAB different from those referred to clause (iv) above, (vi) any other liabilities other than those referred to in the following clauses, (vii) preferred subordinated debentures, (viii) non-preferred subordinated debentures and (ix) the remaining amounts, if any, shall be distributed to stockholders.
Financial Support. Determination by the Financial Stability Committee. If the newly-created Financial Stability Committee (the ‘‘FSC’’) determines that if a bank were to default on its payment obligations and such default may (i) generate severe negative effects in one or more commercial banks or other financial entities,
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endangering their financial stability or solvency, and such circumstance may affect the stability or solvency of the financial system, or (ii) put the operation of the payments’ system at risk, then the FSC may determine, on a single- case basis, that a general percentage of all of the outstanding obligations of the troubled bank that are not considered ‘‘guaranteed obligations’’ under the IPAB Law and guaranteed obligations in amounts equal to or higher than the amount set forth under Article 11 of the IPAB Law (400,000 UDIs per person per entity), be paid as a means to avoid the occurrence of any of such circumstances. Notwithstanding the foregoing, under no circumstance may the transactions referred to in Sections II, IV and V of Article 10 of the IPAB Law (which include transactions such as liabilities or deposits in favor of shareholders, members of the Board of Directors and certain top level officers, and certain illegal transactions) or the liabilities derived from the issuance of subordinated debentures be covered or paid by IPAB or any other Mexican governmental agency.
The members of the FSC are representatives of the Ministry of Finance and Public Credit, Banco de México, the CNBV and the IPAB.
Conditional Management Regime. As an alternative to revoking the banking license of a bank, a new conditional management regime was created, which may apply to commercial banks with a capital ratio below the minimum required pursuant to the Mexican Capitalization Requirements. To adopt this regime, a bank must voluntarily make a request to the CNBV, with prior approval of its shareholders, for the application of the conditional management regime. In order to qualify for such regime, the requesting bank must (i) deliver to the CNBV a plan for the reconstitution of its capital and (ii) transfer at least 75% of its shares to an irrevocable trust.
Banking institutions with a capital ratio equal to or below 50% of the minimum capital ratio required by the Mexican Capitalization Requirements may not adopt the conditional management regime.
Corrective Measures. Pursuant to the Mexican Capitalization Requirements, the CNBV classifies Mexican banks in several categories based on their capital ratio and orders corrective measures to prevent and correct problems that may affect the stability or solvency of banks if a bank fails to meet the minimum required capital ratio. Some of these corrective measures, include, among others:
(1) informing the Board of Directors of the bank’s classification (and the circumstances that resulted in such classification), based on the capital ratio thereof, and submitting a detailed report containing an evaluation of the bank’s overall financial status and its level of compliance with applicable regulation, including the principal regulatory ratios, that reflect the bank’s degree of stability and solvency (together with any determinations or indications made by any of the CNBV or Banco de México); the bank shall provide written notice to the general director and the chairman of the Board of Directors of the bank’s regulated holding company with respect to such events and the status thereof;
(2) within a period not to exceed fifteen (15) Business Days, filing with the CNBV, for its approval, a capital recovery plan to increase the bank’s capital ratio (which may include improving operating efficiencies, rationalizing expenses, increasing profitability, receiving new capital contributions and limiting the bank’s operations); the bank’s capital recovery plan shall be approved by such bank’s Board of Directors before it is submitted to the CNBV for approval; subject to certain exceptions, the plan is required to be satisfied within 270 days counted from the date of its approval by the CNBV;
(3) suspending any payment of dividends to its shareholders, as well as any mechanism or action for the making of any distributions or the granting of any economic benefits to shareholders;
(4) suspending any share repurchase programs;
(5) deferring or canceling payments of interest and deferring the payment of principal on outstanding subordinated debt or, if applicable, exchanging, outstanding convertible subordinated debt into shares of the bank in the amount necessary to cover the capital deficiency; in the event that the bank issues subordinated debt, the bank is obligated to include in the documentation evidencing the relevant debt, in the applicable indenture and in the applicable offering documents, that such deferral of payment of principal or deferral and cancellation of payments of interest shall apply
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upon the occurrence of certain events, as provided in the general rules of Article 134 Bis of the Mexican Law of Credit Institutions set forth under the General Rules for Banks, and that the implementation of such measures shall not be considered a default under the relevant debt documentation;
(6) suspending payment of any extraordinary benefits and bonuses that are not a component of the ordinary salary of the general director or any officer within the next two levels, and suspending the granting of new benefits and bonuses to the general director and the officers mentioned above until the bank complies with the minimum capital ratio set forth under the Mexican Capitalization Requirements;
(7) abstaining from increasing outstanding amounts under any loans granted to any party who is a related party to the bank; and
(8) any other corrective measures that, in each case, are provided by the general rules of Article 134 Bis of the Mexican Law of Credit Institutions set forth under the General Rules for Banks.
Reserve and Compulsory Deposit Requirements. The compulsory reserve requirement is one of the monetary policy instruments used as a mechanism to control the liquidity of the Mexican economy to reduce inflation. The objective of Banco de México’s monetary policy is to maintain the stability of the purchasing power of the Mexican Peso and, in this context, to maintain a low level of inflation. Given the historic inflation levels in Mexico, the efforts of Banco de México have been directed towards a restrictive monetary policy.
Under the Banco de México Law, Banco de México has the authority to order the percentage of the liabilities of financial institutions that must be deposited in interest-bearing or non-interest-bearing deposits with Banco de México. These deposits may not exceed 20% of the aggregate liabilities of the relevant financial institution. Banco de México also has the authority to order that 100% of the liabilities of Mexican banks resulting from specific funding purposes or pursuant to special legal regimes be invested in specific assets created in respect of any such purpose or regime.
To manage its maturity exposures to the Mexican financial markets, Banco de México has been extending the maturities of its liabilities for longer terms to avoid the need for continuing refinancing of its liabilities. Those liabilities have been restructured into voluntary and compulsory deposits (Depósitos de Regulación Monetaria) and into investment securities such as longer-term government bonds (Bondes) and compulsory monetary regulatory bonds (Brems). At the same time, Banco de México has elected to hold short-term assets, thus allowing it the ability readily to refinance its positions of assets and reduce its maturity exposure to the financial markets.
Classification of Loans and Allowance for Loan Losses. The loan classification and rating rules set forth under the General Rules for Banks, provide a methodology to classify (i) consumer loans (i.e., each of credit card exposure and loans to individuals, divided as separate groups) considering as principal elements (a) for credit card exposure, the possibility of non-payment and potential losses (taking into account collateral received), and (b) for loans to individuals, the possibility of non-payment, potential losses (taking into account collateral received) and credit exposure (net of reserves created), (ii) mortgage loans (i.e., residential, including loans for construction, remodeling or improvements), considering as principal elements delinquency periods, possibility of non-payment and potential losses (taking into account collateral and guarantees received), and (iii) commercial loans, based principally on an evaluation of the borrower’s ability to repay its loan (including country risk, financial risk, industry risk and payment history) and an evaluation of the related collateral and guarantees.
The loan classification and rating rules require that consumer loans to individuals be stratified, considering the number of unpaid billing periods applicable to the relevant loans, and that a statutory percentage be applied to loans that are past due for each level, as a means to create reserves; reserves may be decreased as the maturity of the applicable loan approaches and past due payments are made. Credit card loans must be reserved, on a loan-by-loan basis, considering amounts due, amounts paid to the relevant date, credit limits and minimum payments required. Consumer loans to individuals may be classified as A, B, C, D or E, depending upon the percentage of reserves required (from 0% to 100%); credit card consumer loans may be classified as A, B-1, B-2, C, D or E also depending upon the percentage of reserves required.
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The loan classification and rating rules establish the following categories corresponding to levels of risk, applicable reserves and set forth procedures for the grading of commercial loans: A-1, A-2, B-1, B-2, B-3, C-1, C-2, D and E. The loan classification and rating rules require that Mexican banks grade their commercial loan portfolio (except loans made to or guaranteed by the Mexican federal government) as of the end of each quarter and the classification must be reported to the CNBV. The classification of mortgage and consumer loans is required to be made monthly and reported to the CNBV.
The loan loss reserves are held in a separate account on the balance sheet and all write-offs of uncollectible loans are charged against this reserve. Mexican banks are required to obtain authorization from their boards of directors in order to write-off loans. In addition, Mexican banks are required to inform the CNBV after such write- offs have been recorded.
The determination of the allowance for loan losses reflected in Famsa’s financial statements is made at the consolidated Famsa level, and is calculated according to Company policy, which requires management’s judgment, particularly for commercial loans. The loan loss reserve calculation that results from using the estimated and prescribed loss percentages may not be indicative of future losses. Differences between the estimate of the loan loss reserve and the actual loss will be reflected in BAF’s financial statements at the time of charge-off.
Risk Management Policies and Procedures. BAF is subject to the provisions applicable to the development and implementation of risk management policies and procedures contained in the General Bank Rules, which generally provide for the development of a non-speculative, low-risk profile on the part of Mexican banks. Among other things, under such provisions Mexican banks are required to identify, quantify, manage and report the various types of risks to which they are exposed in connection with the financial transactions entered into thereby. The Board of Directors of BAF is responsible for approving the objectives, guidelines and policies for risk management.
To such effect, BAF has established a Risk Management Committee that is responsible for the development and implementation of the policies, procedures and methodology applicable to the identification and administration of its risks, including the establishment of risk limits and any exceptions thereto. In addition, BAF’s Overall Risk Management Unit, which is independent from all other business units, is responsible for the development and implementation of mechanisms and procedures for the identification, measurement, management and reporting of the risks to which it is exposed, based upon legal, regulatory, external and other quantitative and qualitative considerations. Additionally, the Overall Risk Management Unit must also establish the applicable criteria for the credit qualification of each credit and verify that the criteria for the assignment of interest rates are applied according to the risk of the credit transactions. A report containing the results of the analysis, projections and reserve amounts must be presented by the Overall Risk Management Unit to the Risk Management Committee and to the general management of BAF on a monthly basis. For additional information concerning BAF’s risk management policies and procedures, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations―Market Risk Disclosures―Risk Management Policies and Procedures.”
Funding Limits. In accordance with the General Rules for Banks, Mexican banks are required to diversify their funding risks. In particular, a Mexican bank is required to notify the CNBV the business day following the occurrence of the event in the event it receives funds from a person or a group of persons acting in concert that represent in one or more funding transactions more than 100% of a bank’s Tier 1 capital. None of BAF’s liabilities to a person or group of persons exceeds the 100% threshold.
Restrictions on Liens and Guarantees. Under the Mexican Law of Credit Institutions, banks are specifically prohibited from (i) pledging their securities as collateral (except if Banco de México or the CNBV so authorizes, including as described above with respect to derivative transactions) and (ii) guarantying the obligations of third parties, except, generally, in connection with letters of credit and bankers’ acceptances.
Bank Secrecy Provisions; Credit Bureaus. Pursuant to the Mexican Law of Credit Institutions, a Mexican bank may not provide any information relating to the identity of its customers or specific deposits, services or any other banking transactions (including loans) to any third parties (including any purchaser, underwriter or broker or holder of any of the bank’s securities), other than (i) the depositor, debtor, accountholder or beneficiary and their legal representatives or attorneys-in-fact, (ii) judicial authorities in trial proceedings in which the accountholder is a party or defendant, (iii) the Mexican federal tax authorities for tax purposes, (iv) the Ministry of Finance and Public Credit for purposes of the implementation of measures and procedures to prevent terrorism and money laundering,
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(v) the Federal Auditor (Auditoría Superior de la Federación) to exercise its supervisory authority, (vi) the supervisory unit of the Federal Electoral Agency, and (vii) the federal attorney general’s office (Procurador General de la República) for purposes of criminal proceedings, among others. In most cases, the information needs to be requested through the CNBV.
In order to comply with the applicable bank secrecy provisions, we have established different operating systems, which restrict information to be shared between our retail business and BAF. The only information of BAF’s loan portfolio that is provided to Famsa is the information regarding specific loans, which are effectively transferred to Famsa as part of the credit transfer-back process of account receivables that are more than 120 days past due. See “—Banco Ahorro Famsa—Overview.”
Banks and other financial entities are allowed to provide credit-related information to duly-authorized Mexican credit bureaus.
Money Laundering Regulations. Mexico has in effect rules relating to money laundering (the “Money Laundering Rules”).
Under the Money Laundering Rules, BAF is required to satisfy various requirements, including:
the establishment and implementation of procedures and policies, including client identification and know-your-customer policies, to prevent and detect actions, omissions or transactions that might favor, assist or cooperate in any manner with terrorism or money laundering activities (as defined in the Mexican Federal Criminal Code (Código Penal Federal));
implementing procedures for detecting relevant, unusual and suspicious transactions (as defined in the Ministry of Finance and Public Credit regulations);
reporting of relevant, unusual and suspicious transactions to the CNBV and the Ministry of Finance and Public Credit;
the establishment of a communication and control committee (which, in turn, must appoint a compliance officer) in charge of, among other matters, supervising compliance with anti-money laundering provisions; and
The creation of an Electronic Automated System which must have the following functions:
(i) maintaining, updating and consulting of the clients’ information;
(ii) generating, encrypting, coding and transferring of information with respect to any unusual or relevant operations;
(iii) classifying the transactions entered into by the banking institutions in order to screen potential unusual or relevant operations; and
(iv) triggering an alert system with regards to any unusual or relevant operations to be carried out by any politically-exposed person.
BAF is also required to organize and maintain a file before opening an account or entering into any kind of transaction for the identification of each client (each, an “Identification File”). An individual’s Identification File includes, among other information, a copy of the following documentation or data: (i) full name, (ii) date of birth, (iii) country of birth, (iv) nationality, (v) occupation, profession, main activity or line of business, (vi) complete domicile, (vii) telephone number, (viii) e-mail, if any, (ix) tax identification number and population registry identification, when applicable, and (x) advanced electronic signature series number, when applicable. An entity’s Identification File includes, among other information, a copy of the following documentation or data: (i) corporate name, (ii) corporate purpose and line of business, (iii) nationality, (iv) tax identification number, (v) advanced electronic signature series number, when applicable, (vi) complete domicile, (vii) telephone number, (viii) e-mail, if
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any, (ix) incorporation date, and (x) complete name of the sole administrator, the members of the Board of Directors, the general manager or any relevant attorneys-in-fact. Identification Files are maintained for the complete duration of the corresponding agreement entered into with such client, and for a minimum term of ten years from the date such agreement is terminated.
Under the Money Laundering Rules, BAF must provide to the Ministry of Finance and Public Credit, through the CNBV, (i) quarterly reports (within ten business days from the end of each quarter) with respect to transactions equal to, or exceeding, U.S.$10,000, (ii) monthly reports (within 15 business days from the end of the month) with respect to international funds transfers, received or sent by a client, with respect to transactions equal to, or exceeding, U.S.$10,000, (iii) reports of unusual transactions, within 60 calendar days counted from the date an unusual transaction is detected by its systems and (iv) periodic reports of suspicious transactions, within 60 calendar days counted from the date the suspicious transaction is detected.
Rules on Interest Rates. Banco de México regulations limit the number of reference rates that may be used by Mexican banks as a basis for determining interest rates on loans. For Peso-denominated loans, banks may choose any of a fixed rate, TIIE (Tasa de Interés Interbancaria de Equilibrio), Cetes (Certificados de la Tesoreria de la Federación), CCP (costo de captación promedio a plazo), the rate determined by Banco de México as applied to loans funded by or discounted with NAFIN, the rate agreed to with development banks in loans funded or discounted with them, the weighted bank funding rate (tasa ponderada de fondeo bancario) and the weighted governmental funding rate (tasa ponderada de fondeo gubernamental). For UDI-denominated loans, the reference rate is the UDIBONOS (Bonos de Desarrollo del Gobierno Federal denominados en Unidades de Inversión). For foreign currency-denominated loans, banks may choose either a fixed rate or floating market reference rates that are not unilaterally determined by a financial institution, including LIBOR (as defined in the relevant loan or credit agreement) or the rate agreed upon with international or national development banks or funds for loans funded by or discounted with such banks or funds. For U.S. Dollar-denominated loans, banks may choose any of a fixed rate, any of the rates referred to in the prior sentence or CCP-U.S. Dollars, as calculated and published in the Official Gazette by Banco de México.
The rules also provide that only one reference rate can be used for each transaction and that no alternative reference rate is permitted, unless the selected reference rate is discontinued, in which event a substitute reference rate may be established. A rate or the mechanism to determine a rate may not be modified unilaterally by a bank. Rates must be calculated annually, based upon 360-day periods.
Fees. Under Banco de México regulations, Mexican banks, Sofoles and Sofomes may not, in respect of loans, deposits or other forms of funding and services with their respective clients, (i) charge fees that are not included in their respective, publicly disclosed, aggregate annual cost (costo anual total), (ii) charge alternative fees, except if the fee charged is the lower fee, and (iii) charge fees for the cancellation of credit cards issued. In addition, among other things, Mexican banks may not (i) charge simultaneous fees, in respect of demand deposits, for account management and relating to not maintaining minimum amounts, (ii) charge fees for returned checks received for deposit in a deposit account or as payment for loans granted, (iii) charge fees for cancellation of deposit accounts, debit or teller cards or the use of electronic banking services, or (iv) charge different fees depending upon the amount subject of a money transfer. Under the regulations, fees arising from the use of ATMs must be disclosed to users.
Mexican banks, Sofoles and Sofomes permitting customers the use of, or operating, ATMs must choose between two options for charging fees to clients withdrawing cash or requesting balances: (i) specifying a fee for the relevant transactions, in which case, Mexican banks, Sofoles and Sofomes issuing credit or debit cards (“Issuers”) may not charge cardholders any additional fee (Issuers are entitled to charge operators the respective fee), or (ii) permit Issuers to charge a fee to clients, in which case, banks, Sofoles and Sofomes may not charge additional fees to clients.
Banco de México, on its own initiative or as per request from the CONDUSEF, banks, Sofoles or Sofomes, may assess whether reasonable competition conditions exist in connection with fees charged by banks, Sofoles or Sofomes in performing financial operations. Banco de México must obtain the opinion of the Federal Competition Commission (Comisión Federal de Competencia) in carrying out this assessment. Banco de México may take measures to address these issues.
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Law for the Protection and Defense of Financial Service Users. A Law for the Protection and Defense of Financial Service Users (Ley de Protección y Defensa al Usuario de Servicios Financieros) is in effect in Mexico. The purpose of this law is to protect and defend the rights and interests of users of financial services. To this end, the law provides for the creation of CONDUSEF, an autonomous entity that protects the interests of users of financial services and that has very wide authority to protect users of financial services (including imposing fines). CONDUSEF acts as arbitrator in disputes submitted to its jurisdiction and seeks to promote better relationships among users of financial institutions and the financial institutions. As a banking institution, BAF must submit to CONDUSEF’s jurisdiction in all conciliation proceedings (initial steps of a dispute) and may choose to submit to CONDUSEF’s jurisdiction in all arbitration proceedings that may be brought before it. The law requires banks, as BAF, to maintain an internal unit designated to resolve any and all controversies submitted by clients.
CONDUSEF maintains a Registry of Financial Service Providers (Registro de Prestadores de Servicios Financieros), in which all financial services providers must be registered, that assists CONDUSEF in the performance of its activities. CONDUSEF is required to publicly disclose the products and services offered by financial service providers, including interest rates. To satisfy this duty, CONDUSEF has wide authority to request any and all necessary information from financial institutions. Furthermore, CONDUSEF may scrutinize banking services provided by using standard accession agreements.
On July 29, 2010, Article 17 of the Mexican Constitution was amended in order to allow class actions to be brought in federal courts in connection with civil actions on matters related, among others, to protection and defense of financial service users. Consequently, on August 30, 2011, the Federal Code of Civil Procedure and the Law for the Protection and Defense of Financial Service Users (Ley de Protección y Defensa al Usuario de Servicios Financieros), among others, were amended to incorporate class actions. Such amendments became effective on March 1, 2012. As of the date of this offering circular, no class action has been initiated in connection with protection and defense of financial service users matters.
BAF may be required to provide reserves against contingencies that could arise from proceedings pending before CONDUSEF. BAF may also be subject to recommendations by CONDUSEF regarding its standard agreements or information used to provide its services. It may be subject to coercive measures or sanctions imposed by CONDUSEF. At present, BAF is not the subject of any material proceedings before CONDUSEF.
Law for the Transparency and Ordering of Financial Services. The new Transparency and Ordering of Financial Services Law (Ley para la Transparencia y Ordenamiento de los Servicios Financieros) was published in the Official Gazette of Mexico in June 2007. The purpose of this law is to regulate (i) the fees charged to clients of financial institutions for the use and/or acceptance of means of payment, as with debit cards, credit cards, checks and orders for the transfer of funds, (ii) the fees that financial institutions charge to each other for the use of any payment system, (iii) interest rates that may be charged to clients and (iv) other aspects related to financial services, all in an effort to make financial services more transparent and protect the interests of the users of such services. This law grants Banco de México the authority to regulate interest rates and fees and establish general guidelines and requirements relating to payment devices and credit card account statements. See “—Rules on Interest Rates” and “—Fees” above. Banco de México has the authority to specify the basis upon which each bank must calculate its aggregate annual cost (costo annual total), which comprises interest rates and fees, on an aggregate basis, charged in respect of loans and other services. The aggregate annual cost must be publicly disclosed by each bank. The law also regulates the terms that banks must include in standard accession agreements and the terms of any publicity and of information provided in account statements.
BAF must inform Banco de México of any changes in fees at least 30 calendar days before they become effective.
Regulations Regarding the Entry of U.S. Dollars into Mexico. On June 16, 2010, the SHCP issued new regulations limiting the ability of banking institutions to accept U.S. Dollars. Among other things, these new regulations restrict banks from receiving from their customers more than U.S.$4,000 in cash from individuals or U.S.$7,000 from companies operating in the northern border region in the same month in transactions such as the purchase of U.S. Dollars, cash deposits, or as payment of credits or other banking services. These new measures seek to reinforce anti-money laundering policy and dissuade other illegal or improper activities. These new regulations do not limit in any way the amount of U.S. Dollars that may be sold to the public by banking institutions and do not restrict transactions with U.S. Dollars performed by any other means other than cash. According to the
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press release of the SHCP dated June 15, 2010, announcing the issuance of these new regulations, more than 96% of the cash remittance from the United States into Mexico is carried out through electronic money transfers and, therefore, will not be affected by these new regulations. Considering that (i) substantially all of our customers in Mexico pay in Pesos and (ii) all the payment services made in connection with the cash remittance from the United States are made in Pesos, these regulations have not had and we do not expect that they will have a significant impact in our operations. There can be no assurance that regulations related to U.S. Dollar transactions will not be implemented in the future that could have a material effect on our operations.
Legal Regime Applicable to our U.S. Operations
Our consumer finance operations in the United States are subject to various federal laws and regulations, including the Federal Truth-In-Lending Act, the Federal Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Federal Fair Debt Collection Practices Act, the Federal Trade Commission Act, Regulations B and Z of the Federal Reserve System, and to numerous state and local laws and regulations. Among other things, these laws and regulations:
subject us to licensing and registration requirements in connection with our sales on credit and installments;
limit the time length of our consumer lending transactions;
restrict the amount of the fees and commissions that we may charge our clients;
require full-disclosure of our lending practices to our customers;
prescribe procedures for the processing of credit applications, and regulate the entire lending process;
regulate certain account collection practices and procedures; and
regulate the repossession of merchandise and its resale.
In addition, our retail operations are subject to the consumer protection, customs, zoning and other laws and regulations applicable to the U.S. retail industry generally. For instance, we are subject to federal and state laws and regulations that require retailers who offer merchandise at discount prices to also offer merchandise at regular prices during certain periods. The violation of any of these laws and regulations may result in the imposition of fines and penalties, and may entitle our customers to challenge the validity of their payment obligations. We believe that we are currently in compliance with all the laws and regulations applicable to our operations in the United States.
Employees
The following table shows our number of full-time employees by area of activity and geographical segment as of the dates indicated.
Dec 31, 2011 Dec 31, 2012 By Activity in Famsa Mexico: Sales and operations 8,425 8,921 Credit and collections 2,740 2,858 Logistics 624 671 Furniture manufacturing 225 216 Management 411 369 Executive Officers 99 114 Banking Branch 2,622 2,853 Total employees in Famsa Mexico 15,146 16,002
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By Geographical Segment: Famsa Mexico 15,146 16,002 Famsa USA 1,121 739
Total employees 16,267 16,741
In addition, from time to time we hire temporary employees, particularly around the Christmas holiday season. As of December 31, 2012 and December 31, 2011, 31.2% and 30.8% of our employees, respectively, were affiliated with labor unions. Our Mexican employees are affiliated with five labor associations (centrales obreras) and 10 unions, and we have entered into a collective bargaining agreement with each of them. Pursuant to Mexican law, collective bargaining agreements are subject to renegotiation on an annual basis as with respect to salaries, and otherwise on a bi-annual basis. We believe that our relationships with our labor unions are good. To date, we have never experienced a strike or other labor disruption. Famsa USA’s employees are not unionized.
On November 30, 2012, the Federal Labor Law (Ley Federal del Trabajo) was amended in order to incorporate, among other things, (i) labor principles recognized by the International Labor Organization regarding non-discrimination towards women and the disabled in the labor environment, (ii) three new employment arrangements (the “initial training contract,” the “contract on trial” and the “seasonal discontinuous contract”), and (iii) the new subcontracting regime providing a legal framework for the contracting of employees through third parties. While we do not expect these amendments to have a material impact on us, we cannot predict with certainty the potential effects from the application of this new law.
Property
We lease a substantial majority of the retail space used by our stores. We select the retail space used by our stores based upon various considerations, including our desire to convey a uniform corporate image and the need for total sales and warehouse areas sufficient to accommodate our increasing number of product lines and services and merchandise volumes.
As of December 31, 2012, 87.4% of our stores were located on real property owned by independent third parties, 10.5% were located on property leased from related third parties and 2.1% located on property we own. As of December 31, 2011, 88.3% of our stores were located on real property owned by independent third parties, 10.5% were located on property leased from related third parties and 1.2% located on property we own.
As of December 31, 2012, we had more than 370 short- and long-term lease agreements in place. Leased properties are used primarily for our stores and as office space and warehouse facilities. As of December 31, 2011 and December 31, 2012, our total rental expense amounted to Ps.728 million and Ps.763 million, respectively.
The following table shows the principal real properties owned by us as of December 31, 2012.
Location Use Area
(square meters) Cienega de Flores Polígono No.5, Monterrey, Nuevo León ...... Vacant 1,082,433.0 Cienega de Flores Polígono No.2, Monterrey, Nuevo León ...... Vacant 69,078.8 Adolfo López Mateos No.1339, Monterrey, Nuevo León ...... Warehouse 7,409.9 Manuel Pérez Treviño No. 284, Saltillo, Coahuila ...... Store 3,520.6 Colón No. 607 Pte., Monterrey, Nuevo León ...... Store 1,922.5 Pino Suárez and Ruperto Martínez, Monterrey, Nuevo León ...... Store 1,910.4 Félix U. Gómez No. 850, Monterrey, Nuevo León ...... Parking lot 1,640.0 Zaragoza and Ocampo, Saltillo, Coahuila ...... Store 1,315.2 Cuauhtémoc No.1419 Norte, Monterrey, Nuevo León ...... Warehouse 1,288.0 Humberto Lobo (Opción San Pedro Mall), Nuevo León ...... Leased to unaffiliated third party 1,000.0 Ocampo and Hidalgo, Monclova, Coahuila ...... Store 939.0 Cuauhtémoc No. 1408 Lado Sur, Monterrey, Nuevo León ...... Warehouse 802.7 Benito Juárez and Zaragoza, Sabinas, Coahuila ...... Store 700.0 Zaragoza No.449, Saltillo, Coahuila ...... Store 298.3 Allende No. 424, Saltillo, Coahuila ...... Store 249.0
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Location Use Area
(square meters) Zaragoza No. 447, Saltillo, Coahuila ...... Store 143.3
Environmental Matters
In connection with the ownership and/or operation of the real properties where our stores are located, we are subject to various Mexican and U.S. environmental protection laws and regulations, including those concerning the handling and disposal of hazardous residues and materials and the clean-up of polluting agents. We could be forced to incur unanticipated expenses as a result of the violation of such laws or regulations, including clean-up expenses and administrative fines, or of third-party environmental related claims. We believe that we currently conduct all of our business operations in compliance with such laws and regulations.
On July 29, 2010, Article 17 of the Mexican Constitution was amended in order to allow class actions to be brought in federal courts in connection with civil actions on matters related, among others, to environmental law. Consequently, on August 30, 2011, the Federal Code of Civil Procedure and the Mexican General Law of Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al Ambiente) were amended to incorporate class actions. Such amendments became effective on March 1, 2012. As of the date of this offering circular, no class action has been resolved in connection with environmental matters.
Legal Proceedings
From time to time, we are involved in various types of legal proceedings that are incidental to our business operations. Although we cannot predict the outcome of any such proceeding, we believe that none of these proceedings are likely to have a material adverse effect on our results of operations or financial condition. We are not aware of any governmental, legal or arbitration proceedings (including any such proceedings which are pending or threatened), during the past 12 months, which may have, or have had in the recent past, significant effects on our financial position or profitability.
Insurance
Our policy is to purchase and carry all-risk insurance coverage for our property and business operations. We currently maintain insurance policies in respect of all leased and owned real property and all of our inventory, equipment and distribution fleet, with policy specifications and for insured limits that we believe are appropriate in view of our exposure to the risk of loss, the cost of such insurance, the regulatory requirements to which we are subject and the prevailing industry practice. However, we could suffer losses that are not covered by our insurance policies or in amounts that exceed our insured limits.
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OUR MANAGEMENT
General
The management of our business affairs and operations is entrusted to our Board of Directors. Our corporate bylaws prescribe that our Board of Directors shall consist of no less than five and no more than 21 members, subject to determination at the general shareholders meeting. At least 25% of the directors must be independent within the meaning assigned to such term by the Mexican Securities Market Law.
The members of our Board of Directors are appointed to one-year terms during our general annual shareholders meeting and may be reelected. At such meeting, any shareholder or group of shareholders representing at least 10% of our outstanding capital stock is entitled to appoint a director and an alternate. All of our current directors and alternate directors were elected or ratified on April 19, 2013.
A quorum at any meeting of the Board of Directors is formed with the attendance of a majority of its members and actions are validly taken by the affirmative vote of a majority of the members present. In the event of an impasse, the Chairman of the Board casts the deciding vote.
Board of Directors
Our Board of Directors currently consists of eight members, four of whom are considered independent. The following table sets forth the name, title, age and the year elected to office of each of the current board members. The business address for each of the members is our corporate headquarters, Avenida Pino Suárez No. 1202 Norte, 3rd Floor, Unidad “A”, Zona Centro, 64000 Monterrey, Nuevo León, México.
Name Title Age Director since
Humberto Garza González ...... Chairman of the Board 85 1993 Humberto Garza Valdez ...... Director 51 1993 Hernán Javier Garza Valdez ...... Director 49 1993 Oziel Mario Garza Valdez ...... Director 44 1993 Salvador Kalifa Assad ...... Independent Director 62 1998 Jorge Luis Ramos Santos ...... Independent Director 60 2006 Alejandro Sepúlveda Gutiérrez ...... Independent Director 69 2006 Bernardo Guerra Treviño ...... Independent Director 48 2011
There are also seven alternate members of our Board of Directors. Abelardo García Lozano, Humberto Loza López and Ángel Alfonso de Soto Hernández serve as alternate members for the chairman of the board and the directors. Mauricio Morales Sada, Pedro Kalifa Assad, Byrd Cicero Willis Guerra and Salvador Llarena Arriola serve as alternate members for the independent directors.
Humberto Garza González is our founder.
Humberto Garza Valdez has been with the Company for the past 27 years and is Humberto Garza González’s son. He has been our President for the past 16 years, having previously served as Deputy President. He holds a Bachelor’s degree in Business Administration from the University of Monterrey (UDEM) and a Master in Executive Business Administration from the Institute of Executive Business Management (IPADE).
Hernán Javier Garza Valdez has been with the Company for the past 25 years and is Humberto Garza González’s son. He holds a Bachelor’s degree in Economics from the Monterrey Institute of Technology and Professional Studies (ITESM), an M.B.A. from the University of Notre Dame and a Master in Information Systems from ITESM.
Oziel Mario Garza Valdez has been with the Company for the past 19 years and is Humberto Garza González’s son. He has been our Vice President of Clothing and of Verochi S.A. de C.V. for the past 14 years,
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having previously served as Commercial Director for the Monterrey Region. He holds a Bachelor’s degree in Business Administration from UDEM and a Master in Executive Business Administration from IPADE.
Salvador Kalifa Assad has been an independent director since 1997. He currently runs his own consulting firm, Consultores Económicos Especializados, S.A. de C.V., and provides economic analysis for several Mexican newspapers, for which he also writes editorial columns. He was Director of Economic Studies at Grupo Alfa for seven years and collaborated with Grupo Financiero GBM-Atlántico. He holds a Bachelor’s degree in Economics from Instituto Tecnológico y de Estudios Superiores de Monterrey (ITESM), as well as Master’s and Doctoral degrees in Economics from Cornell University. He has also been a member of the Boards of Directors of Grupo IMSA, Verzatec and Banorte.
Jorge Luis Ramos Santos has been an independent director since 2006. He currently represents Heineken Americas in its joint ventures and is a strategic advisor to that company. He has served as Deputy President of Heineken Americas, as Chief Executive Officer of Cervecería Cuauhtémoc Moctezuma and, before that, as Human Resources Vice President and Chief Commercial Officer of Femsa Cerveza. He holds Bachelor’s degrees in Accounting and Business Administration from Instituto Tecnológico y de Estudios Superiores de Monterrey (ITESM) and a Master in Business Administration from the Wharton School of the University of Pennsylvania. He currently sits on the boards of several private and public companies in Latin America, as well as of several business organizations and universities in Mexico.
Alejandro Sepúlveda Gutiérrez has been an independent director since 2006. He has served as Vice President of Financial Information at Alfa, S.A. de C.V., and Corporate Controller and Deputy Vice President, Costs, at Fundidora Monterrey. He holds a degree in Accounting from ITESM and a Master in Business Administration from Texas Christian University and has completed course studies on executive business management at IPADE. He is member of the Committee on Financial Reporting Practices of the Mexican Institute of Finance Executives, Monterrey Division.
Bernardo Guerra Treviño has been an independent director since 2011. He is a founding member and has been Director General of Morales y Guerra Capital Asesores (MG Capital) since 1995. He serves as an independent director of BAF and Axtel, S.A.B. de C.V., where he is also the President of the Corporate Practices and Auditing committees. He is also a member of the administrative committee and President of the Corporate Practices and Auditing committees of Promotora Ambiental, S.A.B. de C.V. He holds an Industrial Engineering degree from ITESM.
Board Practices
Pursuant to the Mexican Securities Market Law and our corporate bylaws, our Board of Directors must, among other things:
determine our general business strategy;
approve (i) policies and guidelines for the use of our assets by related parties, and (ii) any transaction with related parties, subject to certain limited exceptions, in both cases taking into consideration the opinion of the Audit Committee;
approve unusual or non-recurrent transactions and any transactions that imply the acquisition or sale of assets with a value equal to or in excess of 5% of our consolidated assets, or the provision of collateral or guarantees or the assumption of liabilities equal to or in excess of 5% of our consolidated assets;
appoint and remove our chief executive officer, and approve the policies for the appointment of our executive officers;
approve our financial statements, accounting policies and internal control systems;
approve the appointment of our external auditors; and
approve the policies for the disclosure of information.
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The Mexican Securities Market Law also permits us to appoint a substitute director for each appointed director. The substitute director of an independent appointed director must also be independent. The Mexican Securities Market Law also imposes duties of care and loyalty on our directors, including our substitute directors.
The duty of care requires that our directors act in good faith and in our best interest, and obtain from our chief executive officer, other executive officers and external auditors sufficient information based upon which to make their decisions. The duty of care is discharged, primarily, by requesting and obtaining from the issuer or its officers, as the case may be, all information that may be necessary to participate in discussions requiring the presence of such director, by requesting and obtaining information from third-party experts, by attending the meetings of the Board of Directors and its committees and by disclosing material information in the possession of the relevant director. Failure to act with care by any one or more directors subjects the relevant directors to joint liability for damages and losses caused to the Company and its subsidiaries.
The duty of loyalty primarily consists of a duty to maintain the confidentiality of information received in connection with the performance of a director’s duties and to abstain from discussing or voting on matters where the director has a conflict of interest. In addition, the duty of loyalty is breached if a shareholder or group of shareholders is knowingly favored or if, without the express approval of the Board of Directors, a director takes advantage of a corporate opportunity. The duty of loyalty is also breached if the director (i) fails to report to the Audit Committee and our external auditors any irregularity that may come to his attention, or (ii) discloses false or misleading information or fails to register any transaction on the Company’s records that could affect its financial statements. The violation of the duty of loyalty subjects the offending director to joint liability for damages and losses caused to the Company and its subsidiaries, and may subject the offending director to criminal penalties including a prison term of up to 12 years.
Claims for breach of the duty or care of the duty of loyalty may be brought solely for the benefit of the Company, by the Company or by shareholders representing at least 5% of our outstanding shares. Criminal complaints may only be brought by the SHCP, subject to the opinion of the CNBV.
The liabilities specified above will not be applicable if the director acted in good faith and (i) complied with the requirements set forth in the applicable laws and our bylaws in connection with the matters requiring approval by our Board or Directors or its committees, (ii) relied upon information provided by our executive officers or independent experts, and (iii) selects the more adequate alternative in good faith or in a case where the negative effects of such decision may not have been foreseeable.
As of the date of this offering circular, we do not believe there to be any potential conflicts of interests between any duties owed to us by the members of the Board of Directors and their private or other interests.
Our audited consolidated financial statements for the year ended December 21, 2012 have been approved by our Board of Directors and were approved by our shareholders at the annual ordinary shareholders’ meeting held on April 19, 2013.
Secretary
Since December 31, 2005, the Secretary of the Board of Directors is Luis Gerardo Villarreal Rosales. He is not a member of the Board of Directors.
Audit Committee
Under the Mexican Securities Market Law, all members of our Audit Committee must be independent, and two such members must meet the criteria to be considered as financial experts. The following persons are current members of our Audit Committee: Alejandro Sepúlveda Gutiérrez (Chairman) (ratified on April 19, 2013), Salvador Llarena Arriola (elected on April 27, 2007) and Jorge Luis Ramos Santos (elected on October 26, 2010).
The duties of the Audit Committee include, among others:
evaluating our internal control and internal audit systems;
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submitting to the Board and Directors and the shareholders meeting, for approval, an annual report of activities;
reviewing our financial statements and, if applicable, recommending their approval to the Board of Directors; and
overseeing the enforcement of the resolutions adopted by our shareholders meeting and Board of Directors.
The chairman of the Audit Committee prepares an annual report to our Board of Directors with respect to its activities and findings.
Corporate Practices Committee
As in the case of our Audit Committee, in accordance with the Mexican Securities Market Law all members of our Corporate Practices Committee must be independent. The current members of our Corporate Practices Committee are Alejandro Sepulveda Gutiérrez (Chairman) and Jorge Luis Ramos Santos.
The Corporate Practices Committee is required to:
Oversee the performance of our executive officers and the compensation awarded to such executive officers;
Provide to the Board of Directors opinions in connection with any material transaction with related parties;
Call shareholders meetings and submit thereto any matter as it may deem appropriate; and
Assist the Board of Directors in the preparation of the information required by law.
The chairman of the Corporate Practices Committee prepares an annual report to our Board of Directors with respect to its activities and findings.
Executive Officers
The following table sets forth the name, title, age and years with the company of our executive officers.
Years with the Name Title Age Company Humberto Garza Valdez ...... Chief Executive Officer 51 27 Oziel Mario Garza Valdez ...... Vice President, Clothing and Real Estate 44 19 Luis Gerardo Villarreal Rosales ...... Chief Operations Officer 62 15 Abelardo García Lozano ...... Chief Financial Officer 52 23 Héctor Padilla Ramos ...... Vice President, Merchandise 52 15 Héctor Hugo Hernández Lee ...... Vice President, Human Resources 48 13 Martin Urbina Villarreal Vice President, Famsa Mexico 53 10 Ignacio Ortiz Lambretón ...... Vice President, Famsa USA 58 13 Angel Alfonso de Soto Hernández ...... Vice President, Banco Ahorro Famsa 45 1 Joaquin Aguirre Carrera ...... Vice President, Marketing 43 5 Manuel Rodríguez González………... .. Chief Information Officer 60 15
Luis Gerardo Villarreal Rosales has served as our Chief Operating Officer for the past 15 years. Prior to joining the Company, he served as President of the Dairy Division of Sigma Alimentos S.A. de C.V. and as Director of Finance and Administration of the same company, for a total of nine years. Previously, he worked at Hylsa S.A. de C.V. for eight years as Corporate Controller. He holds a Bachelor’s degree in Chemical Engineering from ITESM, a Bachelor’s degree in Accounting and Auditing from Universidad Regiomontana, a Master in Business
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Administration from ITESM and has completed several courses on executive business management at the University of Texas and IPADE.
Abelardo García Lozano has worked with the Company for the past 23 years. He has served as our Chief Financial Officer for the past 17 years and, previously, as Regional Manager and Vice President of Financial Information. Before joining the Company, he served as Administrative Director at Plastic Art Angel. He holds a Bachelor’s degree in Accounting and Auditing from the Universidad de Monterrey and is a Certified Public Accountant. He also holds a degree in Finance from ITESM and a degree in Taxation from the Instituto de Especialización para Ejecutivos (IEE).
Héctor Padilla Ramos has served as our Vice President of Merchandise for the past 15 years. Prior to joining the Company, he served as Vice President of Merchandise at Grupo Mazon, S.A. de C.V. for nine years. He holds a Bachelor’s degree in Industrial Psychology from Northwestern University, a Master in Business Administration from the University of Sonora and a Diploma in Marketing and Finance from ITESM at Sonora.
Héctor Hugo Hernández Lee has served as our Vice President of Human Resources for the past 13 years. Prior to joining the Company, he served as National Director of Human Resources at Danone de México, S.A. de C.V. for three years and as Vice President of Human Resources at Sigma Alimentos S.A. de C.V. for six years. He holds a Bachelor’s degree in Industrial Relations and a Diploma in Organizational Development, both from Universidad Iberoamericana.
Martin Urbina Villarreal has been with the Company for ten years. He currently serves as Vice President of Famsa Mexico and previously as Vice President of Commercial Banking with BAF and as Vice President of Northern Regional Operations for Famsa. Prior to joining the Company, he was General Director of Precision Tune Mexico for five years and Commercial Vice President for the Central Region for Grupo Gamesa for four years. He holds a Bachelor’s degree in Business Administration from ITESM and has completed the AD1 program at IPADE.
Ignacio Ortíz Lambretón has served as Vice President of Famsa USA for the past 13 years. Prior to joining the Company, he worked in Grupo Protexa, S.A. de C.V. for eight years, where he last held the position of President of the Tourism and Real Estate Division. Previously, he held various positions in Alfa, S.A. de C.V., and also served as General Director of Church’s and Little Caesars Pizza Northeast Division, where he was responsible for the operations of 14 stores. He holds a Degree in Systems and Industrial Engineering from ITESM and a Master in Business Administration from the Wharton School of Business of the University of Pennsylvania.
Angel Alfonso de Soto Hernández has been the Vice President of BAF since April 2012, after joining the bank to serve as Director of Consumer Banking earlier in 2012. Prior to joining the Company, he served as Chief Executive Officer of CAM & Credito Inmobiliario-Americas for four years and worked at CAMGE Bank in Spain for three years, where he held the positions of Chief Risk Officer and Chief Compliance Officer. He also worked at GE Capital for ten years, serving as Chief Risk Officer and Chief Compliance Officer in several European countries. He holds a Bachelor’s Degree in Mechanical Engineering with a concentration in Industrial Engineering from Universidad Anahuac and a Master in Business Administration from ITAM.
Joaquin Aguirre Carrera has worked with Grupo Famsa for the past five years, and has served as Vice President of Marketing since September 2011 and, previously, as Vice President of New Business and Marketing at BAF. Prior to joining the Company, he served as Marketing Director at Grupo Financiero Banorte for 10 years and as Subdirector of Strategic Planning at Grupo Financiero Bancomer for another 10 years. He holds a degree in Business Administration and a Master in Business Administration with a specialty in Marketing from the La Salle University.
Manuel Rodríguez González has served as our Chief Information Officer for the past 15 years. Prior to joining the company he served as an IT Manager for more than 15 years in several companies, primarily of Grupo Alfa, S.A.B. de C.V. He holds a Bachelor’s degree in Industrial Engineering from the Universidad Autónoma de Nuevo León (UANL) and has completed several courses on specialized studies in the Escuela de Graduados en Administración EGAII.
Pursuant to the Mexican Securities Market Law, our executive officers are subject to duty of care and duty of loyalty obligations described above.
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Compensations of Our Directors and Executive Officers
By resolution of the annual shareholders meeting held on April 19, 2013, each member of our Board of Directors is entitled to receive Ps.40,000 as compensation for each board meeting attended by such director.
We pay our executive officers, on an annual basis, in addition to their salaries and other fixed compensation, a performance bonus equal to up to 33% of their fixed compensation, based on each executive’s individual performance and our results of operations for the year. During the year ended December 31, 2012, the aggregate amount of all fixed and variable compensations paid to our executive officers, as a group, was Ps.105.7 million.
Stock Plan
In May 2012, the Technical Committee of Trust No. 80497, which is comprised of Humberto Garza Valdez, Oziel Mario Garza Valdez and Luis Gerardo Villarreal Rosales, approved a modification to our April 2006 stock plan, pursuant to which up to 3,123,546 common, nominative shares with no par value could be awarded to executives, employees and persons who render services either to Famsa or to its subsidiaries. The main objectives of the stock plan are to:
motivate beneficiaries to achieve an outstanding performance;
allow beneficiaries to be part of the success of the business;
bring the interests of the beneficiaries in line with those of Famsa;
grant an important incentive to the beneficiaries of the stock plan; and
to retain the services of the beneficiaries of the stock plan.
Awards under the stock plan are determined by the Technical Committee of Trust No. 80497. As of December 31, 2012, a total of 3,113,256 common, nominative shares with no par value had been granted under the stock plan.
Share Ownership
The following table sets forth the beneficial ownership of our capital stock by our directors and senior management as of December 31, 2012.
Number of Percentage of Common Common Name Shares Owned Shares Outstanding Humberto Garza González ...... 275,600,172 62.7% Humberto Garza Valdéz ...... 943,325 0.2% Hernán Javier Garza Valdéz ...... 293,325 0.1% Oziel Mario Garza Valdéz ...... 293,325 0.1% Total 277,130,147 63.1%
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PRINCIPAL SHAREHOLDERS
Our issued capital stock is divided into 439,447,994 shares, of which 330,357,085 are Series A, Class I Shares and 109,090,909 are Series A, Class II Shares. The table below sets forth information concerning the percentage of our capital stock owned by any person known to us to be the owner of 5% or more of any class of our voting securities and our other shareholders as of December 31, 2012. Our major shareholders do not have different or preferential voting rights with respect to the shares they own. Mexican regulations and our bylaws have measures in place to try to limit the abuse of power and to ensure that control of our company is not abused.
Series A, Class II Series A, Class I Shares Shares Shares
Identity of owner Number % Number % Number %
Control Trust(1) 210,517,647 63.77 65,082,525 59.66 275,600,172 62.75 Other members of the Garza Valdez family(2) 1,173,300 0.369 650,000 0.60 1,823,300 0.42 Public Investors 118,406,439 35.84 43,358,384 39.75 161,764,822 36.83
Sub Total 330,097,385 109,090,909
Total 439,188,294 100% ______
(1) Trust No. F/007 and Trust No. F/715 (the “Control Trusts”) were entered into on April 7, 2005 and May 17, 2007, respectively, by Humberto Garza González and Graciela Valdez Sánchez de Garza, with Humberto Garza Valdez, Graciela Valdez Sánchez de Garza and certain immediate family members as beneficiaries. Under the terms of the Control Trusts, voting in respect of the shares subject to the Control Trusts must be exercised by the Trustee as instructed by Humberto Garza González and, upon his death, as instructed by a committee comprised of various members of the Garza Valdez family. The Control Trusts also contain standard provisions relating to, among other things, preemptive rights in the context of future stock issuances and limitations on transfer. The Control Trusts have a duration of 20 years and may be revoked at any time by Humberto Garza González.
(2) Humberto Garza Valdez, Hernán J. Garza Valdez, Graciela L. Garza Valdez and Oziel Mario Garza Valdez.
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RELATED PARTY TRANSACTIONS
We have historically engaged and will continue to engage in a number of transactions with our shareholders or their affiliates. All transactions with these related parties are entered into on an arm’s length basis, on terms and conditions no more favorable than those available in the market through independent third parties.
Real Property Leases
As of December 31, 2012 we had 42 long-term lease agreements in place with our controlling shareholders and various entities controlled thereby, in respect of the retail space used by several of our stores. As of such date, these lease agreements accounted for approximately 10.5% of the aggregate amount of leased space used for our stores. The terms of all such agreements are substantially identical and are consistent with standard industry practices and real estate market prices, except for certain lease agreements entered into with Desarrollos Inmobiliarios Garza Valdez, S.A. de C.V. (“DIGV”), an entity owned by our controlling shareholders, which contain provisions pursuant to which DIGV may terminate the relevant lease in the event of our default with any of our obligations thereunder. In addition, DIGV has pledged the amounts payable as rent by the Company and its subsidiaries under such lease agreements as collateral for certain loan obligations incurred by it. As a result, in the event of default by the Company or its subsidiaries under such lease agreements, DIGV and/or the holder of such debt will be entitled to collect any and all rents through the expiration or termination of the relevant lease.
The terms of our lease agreements with our controlling shareholders and entities controlled by them range from three to fifteen years, and monthly lease payments per lease range from approximately Ps.24,000 to Ps.793,000. With exception of leases with indefinite terms, the average maturity date for these leases as of December 31, 2012 was 13 years. Upon maturity, a majority of these lease agreements are automatically renewable for successive additional one-year terms.
In addition, in respect to DIGV leases, DIGV has pledged the amounts payable as rent by the Company and its subsidiaries under such lease agreements as collateral for certain loan obligations incurred by it. As a result, in the event of default by the Company or its subsidiaries under such lease agreements, DIGV and/or the holder of such debt will be entitled to collect any and all rents through the expiration or termination of the relevant lease.
During the years ended December 31, 2011 and 2012, we made payments in the aggregate amount, stated in millions of Pesos, of Ps.100.9 and Ps. 101.1, respectively, under our lease agreements with these related parties.
Asset Management
We have entered into various asset management agreements with affiliates and other entities controlled by our principal shareholders, pursuant to which such shareholders perform account collection services and manage and invest the proceeds of such accounts on behalf of such entities, in exchange for a commission payable on an annual basis. In addition, pursuant to these agreements we are required to make available to such entities every year a revolving credit facility that bears interest at the rate of 9.3% per annum, payable in arrears at the end of each such year. For the year ended December 31, 2012, net interest expense related to these credit facilities totaled Ps.14.4 million.
We have entered into this kind of agreement with certain entities that are directly or indirectly controlled by our controlling shareholder, including Inmobiliaria Garza Valdez, S.A. de C.V., Inmobiliaria Garza Valdez de la Laguna, S.A. de C.V., Inmobiliaria Logar de Monterrey, S.A. de C.V., and Desarrollos Inmobiliarios Garza Valdez, S.A. de C.V., among others.
During the years ended December 31, 2012 and 2011, we generated net financing expense in the aggregate amount of Ps.14.9 million and Ps.7.7 million, respectively, under our asset management agreements with these related parties.
Banco Ahorro Famsa
BAF has set in place a series of policies and procedures with respect to its transactions with our controlling shareholders and their affiliates, including qualitative and quantitative restrictions and oversight and reporting and
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disclosure obligations in connection therewith. Among other things, such policies and procedures impose restrictions to the granting of loans to our directors, executives and employees other than as part of their employment benefit packages. BAF is in compliance with these policies and procedures.
Article 73 of the Mexican Law of Credit Institutions regulates transactions by a bank with affiliates and other “related party transactions”. Related party transactions may only be undertaken on market terms. Loans made to related parties require the approval of 75% of the members of our board that are present and the prior approval of our credit committee, and must be notified to the CNBV. As of December 31, 2012, loans granted by BAF to related parties pursuant to Article 73 of the Mexican Law of Credit Institutions amounted to Ps.595 million (5.3%,of BAF’s total loan portfolio as of such date). This amount is comprised by 3 loans. BAF entered into a) a three-year credit facility with Grupo Famsa on February 25, 2011 for an aggregate principal amount of Ps.528 million at a variable interest rate of TIIE plus 2.3, with maturity on February 24, 2014; b) a revolving credit facility with Grupo Famsa on November 23, 2012 for an aggregate principal amount of Ps.19 million at a variable interest rate of TIIE plus 2.5, with maturity on May 22, 2013; and c) a revolving credit facility with Grupo Famsa on February 22, 2013 for amount of Ps.48 million at a variable interest rate of TIIE plus 2.28, with maturity on August 21, 2013.
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DESCRIPTION OF NOTES
We issued the notes under an indenture (the “Indenture”), dated the Issue Date, among us, the Subsidiary Guarantors and The Bank of New York Mellon, as Trustee (the “Trustee”), paying agent, transfer agent and registrar and The Bank of New York Mellon SA/NV, Dublin Branch, as listing agent and paying agent in Ireland. The terms of the notes include those stated in the Indenture. We summarize below certain provisions of the Indenture, but do not restate the Indenture in its entirety. We urge you to read the Indenture because it, and not this description, defines your rights. You can obtain a copy of the Indenture in the manner described under “Available Information,” and, for so long as the notes are admitted to listing on the Official List of the Irish Stock Exchange and to trading on the Global Exchange Market, at the office of the paying agent in Ireland.
You can find the definition of capitalized terms used in this section under “—Certain Definitions.” When we refer to:
the “Company” in this section, we mean Grupo Famsa, S.A.B. de C.V., and not its subsidiaries, and
the “notes” in this section, we mean the notes originally issued on the Issue Date and any Additional Notes.
General
The notes will:
be general unsecured obligations of the Company,
rank equal in right of payment with all other existing and future Senior Indebtedness of the Company,
rank senior in right of payment to all existing and future Subordinated Indebtedness of the Company, if any,
be effectively subordinated to all existing and future secured Indebtedness of the Company and the Subsidiary Guarantors,
be unconditionally guaranteed on a general unsecured senior basis by all of the Company’s existing and future Restricted Subsidiaries that are Significant Subsidiaries and not Bank Regulated Subsidiaries,
be structurally subordinated to all existing and future Indebtedness and trade payables of the Company’s subsidiaries that do not guarantee the notes, and
rank junior to all obligations preferred by statute (such as tax and labor obligations).
As of March 31, 2013, on a pro forma basis after giving effect to this offering and the application of proceeds as described under “Use of Proceeds:”
the Company and its Subsidiaries would have had consolidated total indebtedness of Ps. 19,801 million (U.S.$1,602 million ) (including Ps. 12,865 of bank deposits), none of which would have been secured,
the Company and the Subsidiary Guarantors would have had consolidated total indebtedness of Ps. 6,931 million (U.S.$561 million),
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the Company’s Subsidiaries that are not Subsidiary Guarantors would have had consolidated total indebtedness of Ps.12,870 million (U.S.$1,041 million) (including Ps.12,865 million of bank deposits).
Additional Notes
Subject to the limitations set forth under “—Certain Covenants—Limitation on Incurrence of Additional Indebtedness,” the Company and its Subsidiaries may incur additional Indebtedness. At the Company’s option, this additional Indebtedness may consist of additional notes (“Additional Notes”) issued in one or more transactions, which have identical terms (other than issue date) as notes issued on the Issue Date. The notes and the Additional Notes, if any, will be treated as a single class for all purposes of the Indenture, including waivers and amendments; provided that unless such Additional Notes are issued under a separate CUSIP number, such Additional Notes must be issued with no more than de minimis original issue discount or otherwise issued in a qualified reopening for U.S. federal income tax purposes.
Principal, Maturity and Interest
The Company will issue notes in denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof. The notes will mature on June 1, 2020. The notes will not be entitled to the benefit of any mandatory sinking fund.
Interest on the notes will accrue at the rate of 7.250% per annum and will be payable semi-annually in arrears on each June 1 and December 1, commencing on December 1, 2013. Payments will be made to the persons who are registered holders at the close of business on May 16 and November 16, respectively, immediately preceding the applicable interest payment date.
Interest on the notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including the Issue Date. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The redemption of notes with unpaid and accrued interest to the date of redemption will not affect the right of holders of record on a record date to receive interest due on an interest payment date.
If any interest payment or redemption date falls on a day which is not a Business Day, payment of interest, principal and premium, if any, with respect to the notes will be made on the next succeeding Business Day with the same force and effect as if made on the due date, and no interest on such payment will accrue from and after such due date.
Initially, the Trustee will act as paying agent, transfer agent and registrar for the notes. The Company may change the paying agent, transfer agent and registrar without notice to holders of notes. We will pay interest on the notes to the persons in whose name the notes are registered at the close of business on the fifteenth day immediately preceding the due date for payment. Payments of principal and interest in respect of each global note will be paid by wire transfer of immediately available funds to DTC. Payments of principal and interest in respect of any certificated notes will be made by U.S. dollar check drawn on a bank in the City of New York and mailed to the holder of such note at its registered address. Upon application by the holder of at least U.S.$1.0 million in aggregate principal amount of the notes to the specified office of the Trustee or any paying agent not less than 15 days before the due date for any payment in respect of a note, such payment may be made by transfer to a U.S. dollar account maintained by the payee with a bank in The City of New York.
Application has been made to admit the notes for listing on the Official List of the Irish Stock Exchange and to trading on the Global Exchange Market. As long as the notes are listed on this market and as long as the rules of the Irish Stock Exchange require, the Company will also maintain a paying agent in Ireland.
Subject to any applicable abandoned property law, the Trustee and any paying agent shall pay to the Company upon written request any money held by them for the payment of principal of or interest on the notes that remains unclaimed for two years, and, thereafter, holders entitled to any such money must look to the Company for payment as general creditors.
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Additional Amounts
We are required by Mexican law to deduct Mexican withholding taxes from payments of interest to investors who are not residents of Mexico for tax purposes, and will pay additional amounts on those payments to the extent described in this subsection.
The Company and the Subsidiary Guarantors will pay to holders of the notes all additional amounts (“Additional Amounts”) that may be necessary so that every net payment of interest (including any premium paid upon redemption of the notes) or principal to the holder will not be less than the amount provided for in the notes. Net payment means the amount we or our paying agent pay the holder after deducting or withholding an amount for or on account of any present or future taxes, duties, levies, imposts, assessments or other governmental charges (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed with respect to that payment by Mexico or any other jurisdiction in which the Company, or an applicable Subsidiary Guarantor, is organized or resident for tax purposes, or within or through which payment on the notes or the Note Guarantees is made (a “Relevant Jurisdiction”), or, in each case, any political subdivision or taxing authority thereof or therein.
Our obligation to pay Additional Amounts is subject to several important exceptions. The Company and the Subsidiary Guarantors will not pay Additional Amounts to any holder of notes for or solely on account of any of the following:
(i) any Taxes imposed solely because at any time there is or was any connection between the holder or beneficial owner of a note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such holder or beneficial owner, if such holder or beneficial owner is an estate, trust, corporation or partnership) and the Relevant Jurisdiction (or any political subdivision or territory or possession thereof), including such holder or beneficial owner or such fiduciary, settlor, beneficiary, member, shareholder or possessor (i) being or having been a citizen or resident thereof, (ii) maintaining or having maintained an office, permanent establishment, or branch subject to taxation therein or (iii) being or having been present or engaged in a trade or business therein other than the mere holding of such note or the receipt of any amounts due in respect thereof;
(ii) any estate, inheritance, gift or similar Tax imposed with respect to the notes;
(iii) any Taxes imposed, withheld or deducted solely because the holder or beneficial owner or any other person fails to comply with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Jurisdiction (or any political subdivision or territory or possession thereof) of the holder or any beneficial owner of a note if compliance is required by law, regulation or the Administrative Tax Rules (Resolución Miscelánea Fiscal) of the Relevant Jurisdiction or by an applicable income tax treaty to which Mexico or any other Relevant Jurisdiction is a party, as a precondition to exemption from, or reduction in the rate of, the Tax and we or the Subsidiary Guarantor, as the case may be, have given the holders of notes at least 30 days’ notice prior to the first payment date with respect to which such certification, identification, information, documentation or reporting requirement is required to the effect that holders will be required to provide such information and identification;
(iv) any Taxes payable otherwise than by deduction or withholding from payments on the notes;
(v) any Taxes, with respect to a note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to holders of notes, whichever occurs later, except to the extent that the holder of such note would have been entitled to such Additional Amounts on presenting such note for payment on any date during such 30-day period and no Additional Amounts shall be paid for or an account of any additional withholdings or deductions that arise as a result of such presentment after such 30-day period);
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(vi) any payment on a note to a holder thereof that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a partner of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, partner or beneficial owner been the holder of the note;
(vii) any Taxes imposed on a payment to or for the benefit of an individual that is required to be made pursuant to European Council Directive 2003/48 EC or any other Directive on the taxation of savings implementing the conclusion of the ECOFIN council meeting on November 26-27, 2000, or any law implementing or complying with, or introduced in order to conform to, such Directive;
(viii) any Taxes which would have been avoided by a holder presenting the relevant note (if presentation is required) or requesting that such payment be made to another paying agent in a member state of the European Union;
(ix) any Tax required to be withheld or deducted under section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any treaty, law, regulation or other official guidance enacted by any foreign government implementing FATCA, or any agreement between the Company or any Subsidiary Guarantor and the United States or any authority thereof implementing FATCA; or
(x) any combination of the above.
The limitations on our obligations to pay Additional Amounts stated in clause (iii) above will not apply if the provision of information, documentation or other evidence described in such clause (iii) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a holder or beneficial owner of a note, taking into account any relevant differences between U.S. and Mexican law, regulation or administrative practice, than comparable information or other reporting requirements imposed under U.S. tax law (including the United States-Mexico Income Tax Treaty), regulation (including proposed regulations) and administrative practice.
Applicable Mexican regulations currently allow us to withhold at a reduced rate, provided we comply with certain information reporting requirements. Accordingly, the limitations on our obligations to pay Additional Amounts stated in clause (iii) above also will not apply unless (a) the provision of the information, documentation or other evidence described in such clause (iii) is expressly required by the applicable Mexican statutes, regulations and the Administrative Tax Rules (Resolución Miscelánea Fiscal) and (b) we cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican regulations, on our own through reasonable diligence, and (c) we otherwise would meet the requirements for application of the reduced Mexican tax rate.
In addition, such clause (iii) does not require that any person, including any non-Mexican pension fund, retirement fund or financial institution, register with the Ministry of Finance and Public Credit to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax in order to maintain such person’s entitlement to Additional Amounts arising from such Mexican withholding tax.
Upon request, the Company and the Subsidiary Guarantors will provide the Trustee with documentation satisfactory to the trustee evidencing the payment of Mexican taxes in respect of which we have paid any Additional Amount. We will make copies of such documentation available to the holders of the notes or the relevant paying agent upon request.
Any reference in this offering circular, the Indenture, or the notes to principal, premium, interest or any other amount payable in respect of the notes by us will be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection.
In the event that Additional Amounts actually paid with respect to the notes pursuant to the preceding paragraphs are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate
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applicable to the holder of such notes, and as a result thereof such holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such notes, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to us and shall execute all documents necessary to effect such deemed assignment or transfer. However, by making such assignment, the holder makes no representation or warranty that we will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
For a discussion of Mexican withholding taxes applicable to payments under or with respect to the notes, see “Taxation.”
Note Guarantees
Each Subsidiary Guarantor will unconditionally guarantee the performance of all obligations of the Company under the Indenture and the notes. The Obligations of each Subsidiary Guarantor in respect of its Note Guarantee will be limited to the maximum amount as will result in the Obligations not constituting a fraudulent conveyance, fraudulent transfer or similar illegal transfer under applicable law. See “Risk Factors—Risks Related to the Notes—It is possible that the guarantees by our subsidiaries may not be enforceable.”
Each Subsidiary Guarantor will be released and relieved of its obligations (or in the case of Covenant Defeasance, defeasance of certain of its obligations) under its Note Guarantee in the event:
(1) there is a Legal Defeasance or a Covenant Defeasance of the notes as described under “—Legal Defeasance and Covenant Defeasance”;
(2) there is a sale or other disposition or transfer to any Person, other than to the Company or another Subsidiary, of the Capital Stock or all or substantially all of the assets, of such Subsidiary Guarantor (which sale, disposition or transfer is not prohibited under the Indenture), provided that, in the case of a sale, disposition or transfer of Capital Stock, such Subsidiary Guarantor ceases to be a direct or indirect Subsidiary of the Company; or
(3) such Subsidiary Guarantor is designated as an Unrestricted Subsidiary in accordance with “— Certain Covenants—Limitation on Designation of Unrestricted Subsidiaries”; provided, that the transaction is carried out pursuant to and in accordance with all other applicable provisions of the Indenture.
If any Person that is not a Bank Regulated Subsidiary becomes a Restricted Subsidiary that is a Significant Subsidiary (including upon a Revocation of the Designation of a Subsidiary as an Unrestricted Subsidiary), the Company will cause that Restricted Subsidiary (promptly following the determination in accordance with the terms of the Indenture that such Restricted Subsidiary is a Significant Subsidiary) concurrently to become a Subsidiary Guarantor on a senior basis by executing a supplemental indenture and providing the Trustee with an Officers’ Certificate and Opinion of Counsel.
On the Issue Date, Fabricantes Muebleros, S. A. de C. V., Famsa del Centro, S. A. de C. V., Famsa del Pacífico, S. A. de C. V., Famsa Metropolitano, S. A. de C. V., Impulsora Promobien, S. A. de C. V., Famsa, Inc., Famsa Financial, Inc., Auto Gran Crédito Famsa, S. A. de C. V., Expormuebles, S. A. de C. V., Mayoramsa, S. A. de C. V., Verochi, S. A. de C. V., Geografía Patrimonial, S. A. de C. V. and Famsa Mexico, S.A. de C.V. will be the Subsidiary Guarantors.
Not all of our “Restricted Subsidiaries” will guarantee the notes and our Unrestricted Subsidiaries will not guarantee the notes. In the event of a bankruptcy, liquidation or reorganization of these non-guarantor Subsidiaries, these non-guarantor Subsidiaries will pay the holders of their debt and their trade creditors before they will be able to distribute any of their assets to us. In addition, holders of minority equity interests in Subsidiaries may receive distributions prior to or pro rata with the Company depending on the terms of the equity interests. See “Risk Factors—Risks Related to the Notes—Certain of our subsidiaries, including Banco Famsa, are not guarantors, and
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our obligations with respect to the notes will be effectively subordinated to all liabilities of these non-guarantor subsidiaries.”
Optional Redemption
Optional Redemption. Except as stated below, the Company may not redeem the notes prior to June 1, 2017. The Company may redeem the notes, at its option, in whole at any time or in part from time to time, on and after June 1, 2017, at the following redemption prices, expressed as percentages of the principal amount thereof, if redeemed during the twelve-month period commencing on June 1 of any year set forth below:
Year Percentage 2017 ...... 103.625% 2018 ...... 101.813% 2019 and thereafter ...... 100.000%
Prior to June 1, 2017, the Company will have the right, at its option, to redeem any of the notes, in whole or in part, at any time or from time to time prior to their maturity, upon at least 30 days’ but not more than 60 days’ notice, at a redemption price equal to the greater of (1) 100% of the principal amount of such notes and (2) the sum of the present value of the redemption price of the notes to be redeemed at June 1, 2017 (such redemption price being set forth in the table appearing above) plus each remaining scheduled payment of interest thereon during the period between the redemption date and June 1, 2017 (exclusive of interest accrued to the date of redemption), in each case discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points (the “Make-Whole Amount”), plus in each case accrued interest on the principal amount of the notes to the date of redemption.
“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such notes.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.
“Comparable Treasury Price” means, with respect to any redemption date (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotation or (2) if the Company obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Reference Treasury Dealer” means each of Credit Suisse Securities (USA) LLC and Citigroup Global Markets Inc., or their respective affiliates which are primary United States government securities dealers, and not less than two other leading primary United States government securities dealers in New York City reasonably designated by the Company; provided, however, that if any of the foregoing shall cease to be a primary United States government securities dealer in New York City (a “Primary Treasury Dealer”), the Company will substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and ask prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the
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Company by such Reference Treasury Dealer at 3:30 pm New York time on the third Business Day preceding such redemption date.
Optional Redemption upon Equity Offerings. At any time, or from time to time, on or prior to June 1, 2016, the Company may, at its option, use the net cash proceeds of one or more Equity Offerings to redeem in the aggregate up to 35% of the aggregate principal amount of the notes issued under the Indenture at a redemption price equal to 107.250% of the principal amount thereof; provided, that:
(1) after giving effect to any such redemption at least 65% of the aggregate principal amount of the notes issued under the Indenture remains outstanding; and
(2) the Company shall make such redemption not more than 60 days after the consummation of such Equity Offering.
“Equity Offering” means (i) an underwritten public offering of Qualified Capital Stock of the Company pursuant to a registration statement (other than a registration statement filed on Form F-4) filed with the U.S. Securities and Exchange Commission in accordance with the Securities Act or in accordance with applicable Mexican laws, rules and regulations, (ii) a rights offering of Qualified Capital Stock of the Company made generally to the holders of such Qualified Capital Stock or (iii) any private placement of Qualified Capital Stock of the Company to any Person, in each case other than issuances upon exercise of options by employees of the Company or any of its Subsidiaries.
Optional Redemption for Changes in Withholding Taxes. If, as a result of any amendment to, or change in, the laws (or any rules or regulations thereunder) of a Relevant Jurisdiction or any political subdivision or taxing authority or other instrumentality thereof or therein affecting taxation, or any amendment to or change in an official interpretation or application of such laws, rules or regulations, which amendment to or change of such laws, rules or regulations becomes effective on or after the date on which the notes we are offering are issued (which, in the case of a merger, consolidation or other transaction permitted and described under “—Certain Covenants—Limitation on Merger, Consolidation and Sale of Assets,” shall be treated for this purpose as the date of such transaction), we have become obligated or will become obligated, in each case, after taking all reasonable measures to avoid this requirement, to pay Additional Amounts in excess of those attributable to a Mexican withholding tax rate of 4.9% with respect to the notes (see “—Additional Amounts” and “Taxation—Mexican Federal Tax”), then, at our option, all, but not less than all, of the notes may be redeemed at any time on giving not less than 30 nor more than 60 days’ notice, at a redemption price equal to 100% of the outstanding principal amount, plus accrued and unpaid interest and any Additional Amounts due thereon up to but not including the date of redemption; provided, however, that (1) no notice of redemption for tax reasons may be given earlier than 90 days prior to the earliest date on which we would be obligated to pay these Additional Amounts if a payment on the notes were then due, and (2) at the time such notice of redemption is given such obligation to pay such Additional Amounts remains in effect.
Prior to the publication of any notice of redemption pursuant to this provision, we will deliver to the Trustee:
a certificate signed by one of our duly authorized representatives stating that we are entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to our right to redeem have occurred, and
an opinion of legal counsel (which may be our counsel) of recognized standing to the effect that we have or will become obligated to pay such Additional Amounts as a result of such change or amendment.
This notice, once delivered by us to the Trustee, will be irrevocable.
We will give notice to DTC pursuant to the provisions described under “—Certain Covenants—Notices” of any redemption we propose to make at least 30 days (but not more than 60 days) before the redemption date.
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Optional Redemption Procedures. In the event that less than all of the notes are to be redeemed at any time, selection of notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which notes are listed or, if the notes are not then listed on a national securities exchange, on a pro rata basis or by lot (subject to the procedures of DTC). If a partial redemption is made with the proceeds of an Equity Offering, selection of the notes or portions thereof for redemption will, subject to the preceding sentence, be made by the Trustee only on a pro rata basis or on as nearly a pro rata basis as is practicable (subject to the procedures of DTC), unless the method is otherwise prohibited. No notes of a principal amount of U.S.$2,000 or less may be redeemed in part and notes of a principal amount in excess of U.S.$2,000 may be redeemed in part in multiples of U.S.$1,000 only.
Notice of any redemption will be given at least 30 but not more than 60 days before the redemption date to each holder of notes to be redeemed at its registered address. If notes are to be redeemed in part only, the notice of redemption will state the portion of the principal amount thereof to be redeemed. For so long as the notes are admitted to listing on the Official List of the Irish Stock Exchange and to trading on the Global Exchange Market, the Company will cause notices of redemption also to be published as provided under “—Certain Covenants— Notices.” A new note in a principal amount equal to the unredeemed portion thereof (if any) will be issued in the name of the holder thereof upon cancellation of the original note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate).
The Company will pay the redemption price for any note together with accrued and unpaid interest thereon through the date of redemption. On and after the redemption date, interest will cease to accrue on notes or portions thereof called for redemption as long as the Company has deposited with the paying agent funds in satisfaction of the applicable redemption price pursuant to the Indenture. Upon redemption of any notes by the Company, such redeemed notes will be cancelled.
Change of Control
Upon the occurrence of a Change of Control Event, each holder of notes will have the right to require that the Company purchase all or a portion (in minimum principal amounts of U.S.$2,000 or an integral multiple of U.S.$1,000 in excess thereof) of the holder’s notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon through the date of purchase (the “Change of Control Payment”).
Within 30 days following the date upon which the Change of Control Event occurred, the Company must give a notice to each holder, with a copy to the Trustee, offering to purchase the notes as described above (a “Change of Control Offer”) and publish the Change of Control Offer in a newspaper having a general circulation in Ireland (which is expected to be the Irish Times). The Change of Control Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “Change of Control Payment Date”).
On the Change of Control Payment Date, the Company will, to the extent lawful:
(1) accept for payment all notes or portions thereof properly tendered and not withdrawn pursuant to the Change of Control Offer;
(2) deposit with the paying agent funds in an amount equal to the Change of Control Payment in respect of all notes or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of notes or portions thereof being purchased by the Company.
If only a portion of a note is purchased pursuant to a Change of Control Offer, a new note in a principal amount equal to the portion thereof not purchased will be issued in the name of the holder thereof upon cancellation of the original note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate). Notes (or portions thereof) purchased pursuant to a Change of Control Offer will be cancelled and cannot be reissued.
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The Company will not be required to make a Change of Control Offer upon a Change of Control Event if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by the Company and purchases all notes properly tendered and not withdrawn pursuant to the Change of Control Offer, or (2) notice of redemption has been given pursuant to the Indenture as described above under the caption “—Optional Redemption,” unless and until there is a default in payment of the applicable redemption price.
A Change of Control Offer may be made in advance of a Change of Control Event, conditioned upon the occurrence of such Change of Control Event, if a definitive agreement is in place for the Change of Control Event at the time of making the Change of Control Offer.
In the event that holders of not less than 95% of the aggregate principal amount of the outstanding notes accept a Change of Control Offer and the Company or a third party purchases all of the notes held by such holders, the Company will have the right, on not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described above, to redeem all of the notes that remain outstanding following such purchase at a purchase price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, on the notes that remain outstanding, to the date of redemption (subject to the right of holders of notes on the relevant record date to receive interest due on the relevant interest payment date).
Other existing and future Indebtedness of the Company may contain prohibitions on the occurrence of events that would constitute a Change of Control Event or require that Indebtedness to be repurchased upon a Change of Control Event. Moreover, the exercise by the holders of their right to require the Company to repurchase the notes upon a Change of Control Event could cause a default under such Indebtedness even if the Change of Control Event itself does not.
If a Change of Control Offer occurs, there can be no assurance that the Company will have available funds sufficient to make the Change of Control Payment for all the notes that might be delivered by holders seeking to accept the Change of Control Offer. In the event the Company is required to purchase outstanding notes pursuant to a Change of Control Offer, the Company expects that it would seek third-party financing to the extent it does not have available funds to meet its purchase obligations and any other obligations in respect of Senior Indebtedness. However, there can be no assurance that the Company would be able to obtain necessary financing.
The Change of Control Event purchase feature of the notes may in certain circumstances make more difficult or discourage a sale or takeover of us and, thus, the removal of incumbent management. The Change of Control Event purchase feature is a result of negotiations between the Initial Purchasers and us. Holders will not be entitled to require the Company to purchase their notes in the event of a takeover, recapitalization, leveraged buyout or similar transaction which is not a Change of Control Event. In addition, clause (4) of the definition of “Change of Control” includes the sale, conveyance, assignment, transfer, lease or other disposition of all or substantially all of the assets of the Company, determined on a consolidated basis. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no established definition of how this phrase is to be interpreted under applicable law. Accordingly, the application of this provision is uncertain.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations in connection with the purchase of notes in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the “Change of Control” provisions of the Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Indenture by doing so.
Certain Covenants
Suspension of Covenants
During any period of time that (i) the notes have Investment Grade Ratings from at least two of the three Rating Agencies and (ii) no Default or Event of Default has occurred and is continuing (the occurrence of the events
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described in the foregoing clauses (i) and (ii) being collectively referred to as a “Covenant Suspension Event”), the Company and its Restricted Subsidiaries will not be subject to the provisions of the Indenture described under:
“—Limitation on Incurrence of Additional Indebtedness”;
“—Limitation on Guarantees”;
“—Limitation on Restricted Payments”;
“—Limitation on Asset Sales and Sales of Subsidiary Stock”;
“—Limitation on Designation of Unrestricted Subsidiaries”;
“—Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries”;
“—Limitation on Layered Indebtedness”;
clause (b) of “—Limitation on Merger, Consolidation or Sale of Assets”;
“—Limitation on Transactions with Affiliates”; and
“—Conduct of Business”
(collectively, the “Suspended Covenants”).
In the event that the Company and its Restricted Subsidiaries are not subject to the Suspended Covenants for any period of time as a result of the foregoing, and on any subsequent date (the “Reversion Date”) one of the Rating Agencies withdraws its Investment Grade Rating or downgrades its rating assigned to the notes below an Investment Grade Rating, then the Company and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants. The period of time between the Suspension Date and the Reversion Date is referred to as the “Suspension Period.” Notwithstanding that the Suspended Covenants may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Suspended Covenants during the Suspension Period (or upon termination of the Suspension Period or after that time based solely on events that occurred during the Suspension Period).
On the Reversion Date, all Indebtedness incurred during the Suspension Period will be classified to have been incurred pursuant to paragraph (1) of “—Limitation on Incurrence of Additional Indebtedness” below or one of the clauses set forth in paragraph (2) of “—Limitation on Incurrence of Additional Indebtedness” below (to the extent such Indebtedness would be permitted to be incurred thereunder as of the Reversion Date and after giving effect to Indebtedness incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be so permitted to be incurred pursuant to paragraph (1) or (2) of “—Limitation on Incurrence of Additional Indebtedness”, such Indebtedness will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (d) of paragraph (2) of “—Limitation on Incurrence of Additional Indebtedness”. Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under “—Limitation on Restricted Payments” will be made as though the covenant described under “—Limitation on Restricted Payments” had been in effect since the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under the first paragraph of “—Limitation on Restricted Payments.”
The Company will give the Trustee written notice of any Covenant Suspension Event and in any event not later than ten Business Days after such Covenant Suspension Event has occurred. In the absence of such notice, the Trustee shall assume the Suspended Covenants apply and are in full force and effect. The Company will give the Trustee written notice of any occurrence of a Reversion Date not later than five Business Days after such Reversion Date. After any such notice of the occurrence of the Reversion Date, the Trustee shall assume the Suspended Covenants apply and are in full force and effect.
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Limitation on Incurrence of Additional Indebtedness
(1) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness, including Acquired Indebtedness, except that:
(a) the Company and any Subsidiary Guarantor may Incur Indebtedness, including Acquired Indebtedness, and
(b) any Restricted Subsidiary may Incur Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, if, at the time of and immediately after giving pro forma effect to the Incurrence thereof and the application of the proceeds therefrom, the Consolidated Leverage Ratio of the Company is not greater than (i) 3.25 to 1.0, if such Incurrence occurs prior to June 1, 2016 and (ii) 3.00 to 1.0, if such Incurrence occurs on or after June 1, 2016.
(2) Notwithstanding paragraph (1) above, the Company and its Restricted Subsidiaries, as applicable, may Incur the following Indebtedness (“Permitted Indebtedness”):
(a) Indebtedness in respect of the notes (including any Note Guarantee in respect thereof) excluding Additional Notes;
(b) Guarantees by the Company or any Subsidiary Guarantor of Indebtedness of the Company or any other Subsidiary Guarantor permitted under the Indenture; provided that, if any such Guarantee is of Subordinated Indebtedness, then the Note Guarantee of such Subsidiary Guarantor shall be senior to such Subsidiary Guarantor’s Guarantee of such Subordinated Indebtedness;
(c) Indebtedness Incurred by the Company or any Subsidiary Guarantor under the Credit Facilities (including Guarantees in respect thereof) in an aggregate principal amount outstanding at any one time not to exceed the greater of (x) U.S.$75.0 million and (y) 3.0% of Consolidated Tangible Assets of the Company and its Restricted Subsidiaries;
(d) other Indebtedness of the Company and its Restricted Subsidiaries outstanding on the Issue Date other than Indebtedness otherwise specified under any of the other clauses of this definition of “Permitted Indebtedness”;
(e) Hedging Obligations entered into by the Company and its Restricted Subsidiaries in the ordinary course of business and not for speculative purposes;
(f) intercompany Indebtedness between the Company and any Restricted Subsidiary or between any Restricted Subsidiaries; provided that:
(A) if the Company or any Subsidiary Guarantor is the obligor on any such Indebtedness owed to a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full of all obligations under the notes and the Indenture, in the case of the Company, or such Subsidiary Guarantor’s Note Guarantee, in the case of any such Subsidiary Guarantor; provided that the Company, its parent companies and any Subsidiary Guarantor shall agree to vote such Indebtedness, or provide their consents in connection with such Indebtedness, in any Mexican Restructuring, in a manner that is consistent with the vote of, or the consents provided by, the holders of the notes and other unaffiliated creditors of the same class as the notes, and
(B) in the event that at any time any such Indebtedness ceases to be held by the Company or a Restricted Subsidiary, such Indebtedness shall be deemed to be Incurred and not permitted by this clause (f) at the time such event occurs;
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(g) Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (including daylight overdrafts paid in full by the close of business on the day such overdraft was Incurred) drawn against insufficient funds in the ordinary course of business; provided, that such Indebtedness is extinguished within five Business Days of Incurrence;
(h) Indebtedness of the Company or any of its Restricted Subsidiaries represented by letters of credit for the account of the Company or any Restricted Subsidiary, as the case may be, in order to provide security for workers’ compensation claims, payment obligations in connection with self- insurance or similar requirements in the ordinary course of business;
(i) Capitalized Lease Obligations or Purchase Money Indebtedness of the Company or any Restricted Subsidiary, in each case Incurred for the purpose of acquiring or financing all or any part of the purchase price or cost of construction or improvement of property or equipment used in the business of the Company or such Restricted Subsidiary in an aggregate principal amount outstanding at any one time not to exceed the greater of (x) U.S.$35.0 million and (y) 1.50% of Consolidated Tangible Assets of the Company and its Restricted Subsidiaries;
(j) Indebtedness in respect of bid, performance or surety bonds in the ordinary course of business for the account of the Company or any of its Restricted Subsidiaries, including Guarantees or obligations of the Company or any Restricted Subsidiary with respect to letters of credit supporting such bid, performance or surety obligations (in each case other than for the payment of borrowed money);
(k) Refinancing Indebtedness in respect of:
(A) Indebtedness (other than Indebtedness owed to the Company or any Subsidiary of the Company) Incurred pursuant to paragraph (1) above (it being understood that no Indebtedness outstanding on the Issue Date is Incurred pursuant to such paragraph (1) above), or
(B) Indebtedness Incurred pursuant to clause 2(a) or 2(d) of this covenant (excluding Indebtedness outstanding on the Issue Date deemed to be incurred under clause (c) above or Indebtedness owed to the Company or a Subsidiary of the Company) above;
(l) Deposits received from customers of a Bank Regulated Subsidiary;
(m) Additional Indebtedness of a Bank Regulated Subsidiary (excluding any Deposits Incurred pursuant to clause (l) above) in an aggregate principal amount outstanding at any one time not to exceed the greater of (x) U.S.$50.0 million and (y) 2.0% of Consolidated Tangible Assets of the Company and its Restricted Subsidiaries;
(n) Permitted Acquisition Indebtedness;
(o) Indebtedness of the Company or any of its Restricted Subsidiaries Incurred pursuant to any Receivables Transaction;
(p) Additional Indebtedness of the Company or any Subsidiary Guarantor in an aggregate principal amount not to exceed the greater of (x) U.S.$40.0 million and (y) 1.50% of Consolidated Tangible Assets of the Company and its Restricted Subsidiaries at any one time outstanding (which amount may, but need not, be Incurred, in whole or in part, under the Credit Facilities).
(3) For purposes of determining compliance with, and the outstanding principal amount of, any particular Indebtedness Incurred pursuant to and in compliance with, this covenant:
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(a) The amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with IFRS.
(b) The accrual of interest, the accretion or amortization of original issue discount, the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled dividends on Disqualified Capital Stock in the form of additional Disqualified Capital Stock with the same terms will not be deemed to be an Incurrence of Indebtedness for purposes of this covenant; provided that any such outstanding additional Indebtedness or Disqualified Capital Stock paid in respect of Indebtedness Incurred pursuant to any provision of paragraph (2) of this covenant will be counted as Indebtedness outstanding thereunder for purposes of any future Incurrence under such provision.
(c) Indebtedness permitted by this covenant need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness.
(d) In the event that Indebtedness meets the criteria of more than one of the clauses of Permitted Indebtedness described above, or is entitled to be Incurred pursuant to the first paragraph of this covenant, the Company, in its sole discretion, will be permitted to classify such Indebtedness at the time of its Incurrence in any manner that complies with this covenant. In addition, any Indebtedness originally classified as Incurred pursuant to any clause of Permitted Indebtedness may later be reclassified by the Company, in its sole discretion, such that it will be deemed to be Incurred pursuant to another of such clauses to the extent that such reclassified Indebtedness could be Incurred pursuant to such other clause at the time of such reclassification.
(e) For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Indebtedness, principal amount of Indebtedness denominated in a currency other than U.S. dollars shall be the U.S. Dollar Equivalent thereof. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this covenant shall not be deemed to be exceeded as a result solely of fluctuations in exchange rates or currency values.
(f) Guarantees of, or obligations in respect of letters of credit or similar instruments relating to, Indebtedness which is otherwise included in the determination of particular amount of Indebtedness will not be included.
Limitation on Guarantees
Except to the extent that the limitations set forth below expressly contravene, or result in a violation of, Mexican law applicable to a Bank Regulated Subsidiary as determined by the Mexican Banking Regulators, the Company will not permit any Restricted Subsidiary that is not a Subsidiary Guarantor to Guarantee any Indebtedness of the Company or to secure any Indebtedness of the Company with a Lien on the assets of such Restricted Subsidiary, unless contemporaneously therewith (or prior thereto) effective provision is made to Guarantee or secure the notes, as the case may be, on an equal and ratable basis with such Guarantee or Lien for so long as such Guarantee or Lien remains effective, and in an amount equal to the amount of Indebtedness so Guaranteed or secured. Any Guarantee by any such Restricted Subsidiary of Subordinated Indebtedness of the Company will be subordinated and junior in right of payment to the contemporaneous Guarantee of the notes by such Restricted Subsidiary.
Limitation on Restricted Payments
The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, take any of the following actions (each, a “Restricted Payment”):
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(a) declare or pay any dividend or return of capital or make any distribution on or in respect of shares of Capital Stock of the Company or any Restricted Subsidiary to holders of such Capital Stock, other than:
dividends or distributions payable in Qualified Capital Stock of the Company,
dividends or distributions payable to the Company and/or a Restricted Subsidiary, or
dividends, distributions or returns of capital made on a pro rata basis to the Company and its Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of a Restricted Subsidiary, on the other hand (or on a less than pro rata basis to any minority holder);
(b) purchase, redeem or otherwise acquire or retire for value:
any Capital Stock of the Company, or
any Capital Stock of any Restricted Subsidiary held by an Affiliate of the Company (other than a Restricted Subsidiary) or any Preferred Stock of a Restricted Subsidiary, except for Capital Stock held by the Company or a Restricted Subsidiary or purchases, redemptions, acquisitions or retirements for value of Capital Stock on a pro rata basis from the Company and/or any Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of a Restricted Subsidiary, on the other hand, according to their respective percentage ownership of the Capital Stock of such Restricted Subsidiary;
(c) make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, as the case may be, any Subordinated Indebtedness (excluding (x) any intercompany Indebtedness between or among the Company and/or any Restricted Subsidiaries or (y) the purchase, repurchase or other acquisition of Indebtedness that is contractually subordinate to the notes or any Note Guarantee, as the case may be, purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case within one year of such date of purchase, repurchase or acquisition); or
(d) make any Investment (other than Permitted Investments); if at the time of the Restricted Payment immediately after giving effect thereto:
(1) a Default or an Event of Default shall have occurred and be continuing;
(2) the Company is not able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to paragraph (1) of “—Limitation on Incurrence of Additional Indebtedness”; or
(3) the aggregate amount (the amount expended for these purposes, if other than in cash, being the Fair Market Value of the relevant property) of the proposed Restricted Payment and all other Restricted Payments made subsequent to the Issue Date up to the date thereof, less any Investment Return calculated as of the date thereof, shall exceed the sum of:
(A) 50% of cumulative Consolidated Net Income of the Company or, if such cumulative Consolidated Net Income of the Company is a loss, minus 100% of the loss, accrued during the period, treated as one accounting period, beginning on the first day of the fiscal quarter during which the Issue Date occurs to the end of the most recent fiscal quarter for which consolidated financial information of the Company is available; plus
(B) 100% of the aggregate net cash proceeds received by the Company from any Person from any:
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contribution to the equity capital of the Company not representing an interest in Disqualified Capital Stock or issuance and sale of Qualified Capital Stock of the Company, in each case, subsequent to the Issue Date, or
issuance and sale subsequent to the Issue Date (and, in the case of Indebtedness of a Restricted Subsidiary, at such time as it was a Restricted Subsidiary) of any Indebtedness of the Company or any Restricted Subsidiary that has been converted into or exchanged for Qualified Capital Stock of the Company,
excluding, in each case, any net cash proceeds:
(w) received from a Subsidiary of the Company;
(x) used to redeem notes under “—Optional Redemption—Optional Redemption Upon Equity Offerings”;
(y) used to acquire Capital Stock or other assets from an Affiliate of the Company; or
(z) applied in accordance with clause (2) or (3) of the second paragraph of this covenant below;
plus
(C) U.S.$10.0 million.
Notwithstanding the preceding paragraph, this covenant does not prohibit:
(1) the payment of any dividend or the consummation of any irrevocable redemption of Subordinated Indebtedness within 60 days after the date of declaration of such dividend or giving of the redemption notice, as the case may be, if the dividend or redemption would have been permitted on the date of declaration or notice pursuant to the preceding paragraph; provided that such redemption shall be included (without duplication for the declaration) in the calculation of the amount of Restricted Payments;
(2) the acquisition of any shares of Capital Stock of the Company,
(x) in exchange for Qualified Capital Stock of the Company, or
(y) through the application of the net proceeds received by the Company from a substantially concurrent sale of Qualified Capital Stock of the Company or a contribution to the equity capital of the Company not representing an interest in Disqualified Capital Stock, in each case not received from a Subsidiary of the Company;
provided, that the value of any such Qualified Capital Stock issued in exchange for such acquired Capital Stock and any such net proceeds shall be excluded from clause (3)(B) of the first paragraph of this covenant (and were not included therein at any time);
(3) the voluntary prepayment, purchase, defeasance, redemption or other acquisition or retirement for value of any Subordinated Indebtedness solely in exchange for, or through the application of net proceeds of a substantially concurrent sale, other than to a Subsidiary of the Company, of:
(x) Qualified Capital Stock of the Company or
(y) Refinancing Indebtedness for such Subordinated Indebtedness;
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provided, that the value of any Qualified Capital Stock issued in exchange for Subordinated Indebtedness and any net proceeds referred to above shall be excluded from clause (d)(3)(B) of the first paragraph of this covenant (and were not included therein at any time);
(4) if no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of Common Stock of the Company or options, warrants or other securities exercisable or convertible into Common Stock of the Company from any current or former employees or directors or consultants of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment or directorship of the employees, officers or directors, or the termination of retention of any such consultant, in an amount not to exceed U.S.$7.5 million in any calendar year (with unused amounts in any calendar year being permitted to be carried over into succeeding calendar years) plus the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries;
(5) the repurchase of Capital Stock deemed to occur upon the exercise of stock options or warrants to the extent such Capital Stock represents a portion of the exercise price of those stock options or warrants;
(6) the declaration and payment of regularly scheduled or accrued dividends or distributions to holders of any class or series of Disqualified Capital Stock of the Company or any Restricted Subsidiary issued on or after the Issue Date in accordance with the test set forth in paragraph (1) of “—Limitation on Incurrence of Additional Indebtedness”;
(7) upon the occurrence of a Change of Control Event and within 60 days after the completion of the offer to repurchase the notes pursuant to the covenant described under “—Change of Control” above, any repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness of the Company or any Subsidiary Guarantor required pursuant to the terms thereof as a result of such Change of Control Event; provided that (A) the terms of such purchase or redemption are substantially similar in all material respects to the comparable provision included in the Indenture, and (B) at the time of such purchase or redemption no Default or Event of Default shall have occurred and be continuing (or would result therefrom); and
(8) if no Default or Event of Default shall have occurred and be continuing, the purchase by the Company of fractional shares arising out of stock dividends, splits or combinations or business combinations.
In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date, amounts expended pursuant to clauses (1) (without duplication for the declaration of the relevant dividend) (4) and (7) above shall be included in such calculation and amounts expended pursuant to clauses (2), (3), (5), (6) and (8) above shall not be included in such calculation.
Limitation on Asset Sales and Sales of Subsidiary Stock
The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets sold or otherwise disposed of, and
(b) at least 75% of the consideration received for the assets sold by the Company or the Restricted Subsidiary, as the case may be, in the Asset Sale shall be in the form of cash or Cash Equivalents received at the time of such Asset Sale.
For purposes of this clause (b), the following are deemed to be cash:
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(i) Indebtedness and other liabilities shown on the most recent consolidated balance sheet of the Company prior to the date of such Asset Sale (other than Subordinated Indebtedness) that are assumed by the transferee of any such assets and as a result of which the Company and its Restricted Subsidiaries are released from all liability in connection therewith at the time of such Asset Sale; and
(ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted, sold or exchanged by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days, to the extent of the cash or Cash Equivalents received in that conversion, sale or exchange.
Notwithstanding anything to the contrary herein, the Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale with respect to the Capital Stock or property or assets of a Bank Regulated Subsidiary. For the avoidance of doubt, a disposition of accounts receivable (including those of a Bank Regulated Subsidiary) in connection with a Receivables Transaction does not constitute an Asset Sale.
The Company or such Restricted Subsidiary, as the case may be, may apply the Net Cash Proceeds of any such Asset Sale within 365 days thereof to:
(a) repay any Senior Indebtedness of the Company or a Restricted Subsidiary or Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor (including, in each case without limitation, Capitalized Lease Obligations),
(b) make capital expenditures in a Permitted Business, or
(c) purchase
(1) assets (other than current assets as determined in accordance with IFRS or Capital Stock) to be used by the Company or any Restricted Subsidiary in a Permitted Business, or
(2) all or substantially all of the assets of, or any Capital Stock of, a Person engaged solely in a Permitted Business if, after giving effect to any such acquisitions of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary
from a Person other than the Company and its Restricted Subsidiaries; provided that, in the case of clauses (1) and (2), a binding commitment to acquire such assets or such Capital Stock shall be deemed a permitted application of such Net Cash Proceeds hereunder, so long as (i) the Company or such Restricted Subsidiary enters into such binding commitment within 365 days after receipt of such Net Cash Proceeds, (ii) such binding commitment is subject only to customary conditions and (iii) such acquisition is consummated within six months from the date of signing such binding commitment.
To the extent all or a portion of the Net Cash Proceeds of any Asset Sale are not applied within 365 days of the Asset Sale as set forth in clause (a) or (b) (or, in the case of clause (c) only, within such longer period set forth therein) of the immediately preceding paragraph, the Company will make an offer to purchase notes (the “Asset Sale Offer”), at a purchase price equal to 100% of the principal amount of the notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchase (the “Asset Sale Offer Amount”). The Company will purchase pursuant to an Asset Sale Offer from all tendering holders on a pro rata basis, and, at the Company’s option, on a pro rata basis with the holders of any other Senior Indebtedness with similar provisions requiring the Company to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of notes and the other Senior Indebtedness to be purchased equal to such unapplied Net Cash Proceeds. The Company may satisfy its obligations under this covenant with respect to the Net Cash Proceeds of an Asset Sale by making an Asset Sale Offer prior to the expiration of the relevant 365-day period.
The purchase of notes pursuant to an Asset Sale Offer will occur not less than 20 Business Days following the date thereof, or any longer period as may be required by law, nor more than 45 days following the 365th day
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following the Asset Sale. The Company may, however, defer an Asset Sale Offer until there is an aggregate amount of unapplied Net Cash Proceeds from one or more Asset Sales equal to or in excess of U.S.$20.0 million. At that time, the entire amount of unapplied Net Cash Proceeds, and not just the amount in excess of U.S.$20.0 million, will be applied as required pursuant to this covenant. Pending application in accordance with this covenant, Net Cash Proceeds will be applied to temporarily reduce revolving credit borrowings that can be reborrowed or Invested in Cash Equivalents.
Each notice of an Asset Sale Offer will be mailed first class, postage prepaid, to the record holders of notes as shown on the register of holders within 20 days following such 365th day, with a copy to the Trustee offering to purchase the notes as described above. Each notice of an Asset Sale Offer will state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “Asset Sale Offer Payment Date”). Upon receiving notice of an Asset Sale Offer, holders of notes may elect to tender their notes in whole or in part in amounts of U.S.$2,000 or integral multiples of U.S.$1,000 in excess thereof in exchange for cash.
On the Asset Sale Offer Payment Date, the Company will, to the extent lawful:
(1) accept for payment all notes or portions thereof properly tendered pursuant to the Asset Sale Offer;
(2) deposit with the paying agent funds in an amount equal to the Asset Sale Offer Amount in respect of all notes or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of notes or portions thereof being purchased by the Company.
To the extent holders of notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw notes or the other Senior Indebtedness in an aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the Company will purchase the notes and the other Senior Indebtedness on a pro rata basis (based on amounts tendered). If only a portion of a note is purchased pursuant to an Asset Sale Offer, a new note in a principal amount equal to the portion thereof not purchased will be issued in the name of the holder thereof upon cancellation of the original note (or appropriate adjustments to the amount and beneficial interests in a global note will be made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer will be cancelled and cannot be reissued.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws in connection with the purchase of notes pursuant to an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with the “Asset Sale” provisions of the Indenture, the Company will comply with these laws and regulations and will not be deemed to have breached its obligations under the “Asset Sale” provisions of the Indenture by doing so.
Upon completion of an Asset Sale Offer, the amount of Net Cash Proceeds will be reset at zero. Accordingly, to the extent that the aggregate amount of notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the aggregate amount of unapplied Net Cash Proceeds, the Company and its Restricted Subsidiaries may use any remaining Net Cash Proceeds for any purpose not otherwise prohibited by the Indenture.
In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under “—Limitation on Merger, Consolidation and Sale of Assets,” the Surviving Entity will be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this covenant, and will comply with the provisions of this covenant with respect to the deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of properties and assets of the Company or its Restricted Subsidiaries so deemed to be sold will be deemed to be Net Cash Proceeds for purposes of this covenant.
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If at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any non-cash consideration), the conversion or disposition will be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof will be applied in accordance with this covenant within 365 days of conversion or disposition.
Limitation on Designation of Unrestricted Subsidiaries
Except to the extent that the limitations set forth below expressly contravene, or result in a violation of, Mexican law applicable to a Bank Regulated Subsidiary as determined by the Mexican Banking Regulators, the Company may designate after the Issue Date any Subsidiary of the Company as an “Unrestricted Subsidiary” under the Indenture (a “Designation”) only if:
(1) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such Designation and any transactions between the Company or any of its Restricted Subsidiaries and such Unrestricted Subsidiary are in compliance with “—Limitation on Transactions with Affiliates”;
(2) at the time of and after giving effect to such Designation, the Company could Incur U.S.$1.00 of additional Indebtedness pursuant to paragraph (1) of “—Limitation on Incurrence of Additional Indebtedness”;
(3) the Company would be permitted to make an Investment at the time of Designation (assuming the effectiveness of such Designation and treating such Designation as an Investment at the time of Designation) as a Restricted Payment pursuant to the first paragraph of “—Limitation on Restricted Payments” in an amount (the “Designation Amount”) equal to the amount of the Company’s Investment in such Subsidiary on such date; and at the time of such Designation, neither the Company nor any Restricted Subsidiary will:
(1) provide credit support for, subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary) to the satisfaction of, or Guarantee, any Indebtedness of such Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness);
(2) be directly or indirectly liable for any Indebtedness of such Unrestricted Subsidiary; or
(3) be directly or indirectly liable for any Indebtedness which provides that the holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with respect to any Indebtedness of such Unrestricted Subsidiary, except for any non-recourse Guarantee given solely to support the pledge by the Company or any Restricted Subsidiary of the Capital Stock of such Unrestricted Subsidiary.
The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”) only if:
(1) No Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Revocation; and
(2) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if Incurred at such time, have been permitted to be Incurred for all purposes of the Indenture.
The Designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be deemed to include the Designation of all of the Subsidiaries of such Subsidiary. All Designations and Revocations must be evidenced
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by resolutions of the Board of Directors of the Company, delivered to the Trustee certifying compliance with the preceding provisions.
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
(a) Except as provided in paragraph (b) below, the Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on or in respect of its Capital Stock to the Company or any other Restricted Subsidiary or pay any Indebtedness owed to the Company or any other Restricted Subsidiary;
(2) make loans or advances to, or Guarantee any Indebtedness or other obligations of, or make any Investment in, the Company or any other Restricted Subsidiary; or
(3) transfer any of its property or assets to the Company or any other Restricted Subsidiary.
(b) Paragraph (a) above will not apply to encumbrances or restrictions existing under or by reason of:
(1) applicable law, rule, regulation or order (including any restrictions imposed by the Mexican Banking Regulators on a Bank Regulated Subsidiary);
(2) the Indenture, the notes and the Note Guarantees;
(3) the terms of any Indebtedness outstanding on the Issue Date, and any amendment, modification, restatement, renewal, restructuring, replacement or Refinancing thereof; provided, that any amendment, modification, restatement, renewal, restructuring, replacement or Refinancing is not materially more restrictive, taken as a whole, with respect to such encumbrances or restrictions than those in existence on the Issue Date;
(4) customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under the Indenture;
(5) any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(6) restrictions with respect to a Restricted Subsidiary of the Company imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided, that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold;
(7) customary restrictions imposed on the transfer of copyrighted or patented materials;
(8) an agreement governing Indebtedness of the Company or any Restricted Subsidiaries permitted to be Incurred subsequent to the date of the Indenture in accordance with the covenant set forth under “—Limitation on Incurrence of Additional Indebtedness”; provided that the provisions relating to such encumbrance or restriction contained in such agreement are no more restrictive than those contained in the agreement referred to in clause (3) or, in the case of Indebtedness Incurred
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pursuant to this clause (8) to Refinance Acquired Indebtedness, no more restrictive than those contained in the agreement referred to in clause (5) of this paragraph;
(9) purchase money obligations for property (including Capital Stock) acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (3) of paragraph (a) above;
(10) Liens permitted to be incurred under the provisions of the covenant described below under the caption “—Limitation on Liens” that limits the right of the debtor to dispose of the assets securing such Indebtedness;
(11) provisions limiting the payment of dividends in the organizational documents, shareholders’ agreements, joint venture agreements or similar documents of, or related to, Restricted Subsidiaries that are not Wholly Owned Subsidiaries and which have been entered into (A) in the ordinary course of business and (B) with the approval of the Company’s Board of Directors;
(12) restrictions on cash deposited with banks in the ordinary course of business consistent with past practice; or
(13) restrictions customarily granted in connection with securitization, factoring or discounting involving receivables that are imposed in connection with a Receivables Transaction.
Limitation on Liens
The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Liens of any kind (except for Permitted Liens) against or upon any of their respective properties or assets, whether owned on the Issue Date or acquired after the Issue Date, or any proceeds therefrom, to secure any Indebtedness or trade payables unless contemporaneously therewith effective provision is made:
(1) in the case of the Company or any Restricted Subsidiary other than a Subsidiary Guarantor, to secure the notes and all other amounts due under the Indenture; and
(2) in the case of a Subsidiary Guarantor, to secure such Subsidiary Guarantor’s Note Guarantee of the notes and all other amounts due under the Indenture; in each case, equally and ratably with such Indebtedness or other obligation (or, in the event that such Indebtedness is subordinated in right of payment to the notes or such Note Guarantee, as the case may be, prior to such Indebtedness or other obligation) with a Lien on the same properties and assets securing such Indebtedness or other obligation for so long as such Indebtedness or other obligation is secured by such Lien.
Limitation on Merger, Consolidation and Sale of Assets
The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or cause or permit any Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise dispose of) all or substantially all of the Company’s properties and assets (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person unless:
(a) either:
(1) the Company shall be the surviving or continuing corporation, or
(2) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Restricted Subsidiaries substantially as an entirety (the “Surviving Entity”):
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(A) shall be a corporation organized and validly existing under the laws of Mexico, the United States of America, any State thereof or the District of Columbia or any other country that is a member country of the European Union or of the Organization for Economic Cooperation and Development, and
(B) shall expressly assume, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the notes and the performance and observance of every covenant of the notes and the Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction and the assumption contemplated by clause (a)(2)(B) above (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred in connection with or in respect of such transaction), the Company or such Surviving Entity, as the case may be, will be able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to paragraph (1) of “—Limitation on Incurrence of Additional Indebtedness”;
(c) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (a)(2)(B) above (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing;
(d) each Subsidiary Guarantor (including Persons that become Subsidiary Guarantors as a result of the transaction) has confirmed by supplemental indenture that its Note Guarantee will apply for the Obligations of the Surviving Entity in respect of the Indenture and the notes;
(e) if (i) the Company is organized under Mexican law and merges with a corporation, or the Surviving Entity is, organized under the laws of the United States, any State thereof or the District of Columbia or any other country that is a member country of the European Union or of the Organization for Economic Cooperation and Development or (ii) the Company is organized under the laws of the United States, any State thereof or the District of Columbia or any other country that is a member country of the European Union or of the Organization for Economic Cooperation and Development and merges with a corporation, or the Surviving Entity is, organized under the laws of Mexico, the Company or the Surviving Entity will have delivered to the Trustee an Opinion of Counsel from each of Mexico and the United States or any such other country, as the case may be, to the effect that, as applicable:
(i) the holders of the notes will not recognize income, gain or loss for U.S., Mexican or any other jurisdiction’s income tax purposes as a result of the transaction and will be taxed in the holder’s home jurisdiction in the same manner and on the same amounts (assuming solely for this purpose that no Additional Amounts are required to be paid on the notes) and at the same time as would have been the case if the transaction had not occurred;
(ii) any payment of interest or principal under or relating to the notes or any Note Guarantee will be paid in compliance with any requirements under “—Additional Amounts”;
(iii) no other taxes on income, including capital gains, will be payable by holders of the notes under the laws of Mexico, the United States or any other jurisdction relating to the acquisition, ownership or disposition of the notes, including the receipt of interest or principal thereon; provided that the holder does not use or hold, and is not deemed to use or hold the notes in carrying on a business in such jurisdiction, and
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(f) the Company or the Surviving Entity has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, comply with the applicable provisions of the Indenture and that all conditions precedent in the Indenture relating to the transaction have been satisfied.
For purposes of this covenant, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
The provisions of clause (b) above will not apply to:
(1) any transfer of the properties or assets of a Restricted Subsidiary to the Company or to a Subsidiary Guarantor;
(2) any merger of a Restricted Subsidiary into the Company or a Subsidiary Guarantor; or
(3) any merger or spin-off of the Company or a Restricted Subsidiary into a Wholly Owned Subsidiary of the Company created for the purpose of holding the Capital Stock, the properties or assets of the Company or a Restricted Subsidiary, as the case may be, so long as, in each case the Indebtedness of the Company and its Restricted Subsidiaries taken as a whole is not increased thereby.
Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries in accordance with this covenant, in which the Company is not the continuing corporation, the Surviving Entity formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture and the notes with the same effect as if such Surviving Entity had been named as such. For the avoidance of doubt, compliance with this covenant will not affect the obligations of the Company (including a Surviving Entity, if applicable) under “—Change of Control,” if applicable.
Each Subsidiary Guarantor will not, and the Company will not cause or permit any Subsidiary Guarantor to, consolidate with or merge into, or sell or dispose of all or substantially all of its assets to, any Person (other than the Company) that is not a Subsidiary Guarantor unless:
(1) such Person (if such Person is the surviving entity) assumes all of the obligations of such Subsidiary Guarantor in respect of its Note Guarantee by executing a supplemental indenture and providing the Trustee with an Officers’ Certificate and Opinion of Counsel, and such transaction is otherwise in compliance with the Indenture;
(2) such Note Guarantee is to be released as provided under “—Note Guarantees”; or
(3) such sale or other disposition of substantially all of such Subsidiary Guarantor’s assets is made in accordance with “—Limitation on Asset Sales and Sales of Subsidiary Stock.”
Limitation on Transactions with Affiliates
(1) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any of its Affiliates (each an “Affiliate Transaction”), unless:
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(a) the terms of such Affiliate Transaction are no less favorable than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company;
(b) in the event that such Affiliate Transaction involves aggregate payments, or transfers of property or services with a Fair Market Value, in excess of U.S.$15.0 million, the terms of such Affiliate Transaction will be approved by a majority of the members of the Board of Directors of the Company (including a majority of the disinterested members thereof), the approval to be evidenced by a Board Resolution stating that the Board of Directors has determined that such transaction complies with the preceding provisions; and
(c) in the event that such Affiliate Transaction involves aggregate payments, or transfers of property or services with a Fair Market Value, in excess of U.S.$25.0 million, the Company will, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such Affiliate Transaction to the Company and the relevant Restricted Subsidiary (if any) from a financial point of view from an Independent Financial Advisor and file the same with the Trustee.
(2) Paragraph (1) above will not apply to:
(a) Affiliate Transactions with or among the Company and any Wholly Owned Subsidiary or between or among Wholly Owned Subsidiaries;
(b) reasonable fees and compensation paid to, and any indemnity provided on behalf of, officers, directors, employees, consultants or agents of the Company or any Restricted Subsidiary as determined in good faith by the Company’s Board of Directors;
(c) Affiliate Transactions undertaken pursuant to any contractual obligations or rights in existence on the Issue Date and any amendment, modification, extension or replacement of such agreement (so long as such amendment, modification, extension or replacement is not materially more disadvantageous to the holders of notes, taken as a whole, than the original agreement as in effect on the Issue Date);
(d) any Restricted Payments made in compliance with “—Limitation on Restricted Payments”;
(e) loans and advances to officers, directors and employees of the Company or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business and not exceeding U.S.$2.5 million outstanding at any one time; and
(f) any issuance of Capital Stock (other than Disqualified Stock) of the Company to Affiliates of the Company or to any director, officer, employee or consultant of the Company, and the granting and performance of registration rights.
Conduct of Business
The Company and its Restricted Subsidiaries will not engage in any business other than a Permitted Business.
Reports to Holders
So long as any notes are outstanding, the Company will furnish to the Trustee:
(a) Within 120 days following the end of each of the Company’s fiscal years, information (presented in the English language) including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section with scope and content substantially similar to the corresponding section of this offering circular (after taking into consideration any changes to the
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business and operations of the Company after the Issue Date), consolidated audited income statements, balance sheets and cash flow statements and the related notes thereto for the Company for the two most recent fiscal years in accordance with IFRS, which need not, however, comply with Regulation S-X of the U.S. Securities and Exchange Commission, together with an audit report thereon by the Company’s independent auditors; and
(b) Within 60 days following the end of the first three fiscal quarters in each of the Company’s fiscal years, quarterly reports containing unaudited balance sheets, statements of income, statements of shareholders equity and statements of cash flows and the related notes thereto for the Company and the Restricted Subsidiaries on a consolidated basis, in each case for the quarterly period then ended and the corresponding quarterly period in the prior fiscal year and prepared in accordance with IFRS, which need not, however, comply with Regulation S-X of the U.S. Securities and Exchange Commission, together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section for such quarterly period and condensed footnote disclosure (in each case, presented in the English language).
None of the information provided pursuant to the preceding paragraph shall be required to comply with Regulation S-K as promulgated by the U.S. Securities and Exchange Commission. In addition, the Company shall furnish to the holders of the notes and to prospective investors, upon the requests of such holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the notes are not freely transferable under the Securities Act by Persons who are not “affiliates” under the Securities Act.
In addition, if and so long as the notes are admitted to listing on the Official List of the Irish Stock Exchange and to trading on the Global Exchange Market and the rules of the Irish Stock Exchange so require, copies of such reports furnished to the Trustee will also be made available at the specified office of the paying agent in Ireland.
Delivery of such reports, information and documents to the Trustee shall be for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of the covenants contained in the Indenture (as to which the Trustee will be entitled to conclusively rely upon an Officers’ Certificate).
Listing
In the event that the Notes are listed on the Global Exchange Market, the Company will use its reasonable best efforts to maintain such listing, provided that if, as a result of the European Union regulated market amended Directive 2001/34/EC (the “Transparency Directive”) or any legislation implementing the Transparency Directive the Company could be required to publish financial information either more regularly than it otherwise would be required to or according to accounting principles which are materially different from the accounting principles which the Company would otherwise use to prepare its published financial information, the Company may delist the notes from the Global Exchange Market in accordance with the rules of the Irish Stock Exchange and seek an alternative admission to listing, trading and/or quotation for the notes on a different section of the Irish Stock Exchange or by such other listing authority, stock exchange and/or quotation system inside or outside the European Union as the Company may decide.
Notices
From and after the date the notes are listed on the Global Exchange Market and so long as it is required by the rules of such exchange, all notices to holders of notes will be published in English:
(1) in a leading newspaper having a general circulation in Ireland (which is expected to be the Irish Times); or
(2) if such Irish publication is not practicable, in one other leading English language newspaper being published on each day in morning editions, whether or not it shall be published in Saturday, Sunday or holiday editions.
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Notices shall be deemed to have been given on the date of publication as aforesaid or, if published on different dates, on the date of the first such publication. In addition, notices will be mailed to holders of notes at their registered addresses in Ireland.
Events of Default
The following are “Events of Default”:
(1) default in the payment when due of the principal of or premium, if any, on any notes, including the failure to make a required payment to purchase notes tendered pursuant to an optional redemption, Change of Control Offer or an Asset Sale Offer;
(2) default for 30 days or more in the payment when due of interest, or Additional Amounts, if any, on any notes;
(3) the failure to perform or comply with any of the provisions described under “—Certain Covenants—Limitation on Merger, Consolidation and Sale of Assets”;
(4) the failure by the Company or any Restricted Subsidiary to comply with any other covenant or agreement contained in the Indenture or in the notes for 45 days or more after written notice to the Company from the Trustee or holders of at least 25% in aggregate principal amount of the outstanding notes;
(5) default by the Company or any Restricted Subsidiary under any Indebtedness which:
(A) is caused by a failure to pay principal of or premium, if any, or interest on such Indebtedness prior to the expiration of any applicable grace period provided in such Indebtedness on the date of such default; or
(B) results in the acceleration of such Indebtedness prior to its stated maturity;
and the principal or accreted amount of Indebtedness covered by subclause (A) or (B) at the relevant time, aggregates U.S.$25.0 million or more;
(6) failure by the Company or any of its Restricted Subsidiaries to pay one or more final judgments against any of them, aggregating U.S.$25.0 million or more, which judgment(s) are not paid, discharged or stayed for a period of 60 days or more;
(7) certain events of bankruptcy, insolvency or concurso mercantil affecting the Company or any of its Restricted Subsidiaries or group of Subsidiaries that, taken together, would constitute a Significant Subsidiary; or
(8) except as permitted by the Indenture, any Note Guarantee is held to be unenforceable or invalid in a judicial proceeding or ceases for any reason to be in full force and effect or any Subsidiary Guarantor, or any Person acting on behalf of any Subsidiary Guarantor, denies or disaffirms such Subsidiary Guarantor’s obligations under its Note Guarantee.
If an Event of Default (other than an Event of Default specified in clause (7) above with respect to the Company) shall occur and be continuing, the Trustee or holders of at least 25% in principal amount of outstanding notes may declare the unpaid principal of (and premium, if any) and accrued and unpaid interest on all the notes to be immediately due and payable by notice in writing to the Company and the Trustee specifying the Event of Default and that it is a “notice of acceleration.” If an Event of Default specified in clause (7) above occurs with respect to the Company, then the unpaid principal of (and premium, if any) and accrued and unpaid interest on all the notes will become immediately due and payable without any declaration or other act on the part of the Trustee or any holder of notes.
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The Trustee is not to be charged with knowledge of any Default or Event of Default or knowledge of any cure of any Default or Event of Default (other than a payment default) unless written notice of such Default or Event of Default has been given to an authorized officer of the Trustee with direct responsibility for the administration of the Indenture by the Company or any holder of notes.
At any time after a declaration of acceleration with respect to the notes as described in the preceding paragraph, holders of a majority in principal amount of the notes may rescind and cancel such declaration and its consequences:
(1) if the rescission would not conflict with any judgment or decree;
(2) if all existing Events of Default have been cured or waived, except nonpayment of principal or interest that has become due solely because of the acceleration;
(3) to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; and
(4) if the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances.
No rescission will affect any subsequent Default or impair any rights relating thereto.
Holders of a majority in principal amount of the notes may waive any existing Default or Event of Default under the Indenture, and its consequences, except a default in the payment of the principal of, premium, if any, or interest on any notes.
Subject to the provisions of the Indenture relating to the duties of the Trustee, the Trustee is under no obligation to exercise any of its rights or powers under the Indenture at the request, order or direction of any of the holders of notes, unless such holders have offered to the Trustee reasonable indemnity. Subject to all provisions of the Indenture and applicable law, holders of a majority in aggregate principal amount of the then outstanding notes have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee.
No holder of any notes will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless:
(1) such holder gives to the Trustee written notice of a continuing Event of Default;
(2) holders of at least 25% in principal amount of the then outstanding notes make a written request to pursue the remedy;
(3) such holders of notes provide to the Trustee satisfactory indemnity;
(4) the Trustee does not comply within 60 days; and
(5) during such 60 day period holders of a majority in principal amount of the outstanding notes do not give the Trustee a written direction which, in the opinion of the Trustee, is inconsistent with the request; provided that a holder of a note may institute suit for enforcement of payment of the principal of and premium, if any, or interest on such note on or after the respective due dates expressed in such note.
The Company is required to deliver to the Trustee written notice of any event which would constitute certain Defaults or Events of Default, their status and what action the Company is taking or proposes to take in respect thereof. In addition, the Company is required to deliver to the Trustee, within 105 days after the end of each
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fiscal year, an Officers’ Certificate indicating whether the signers thereof know of any Default or Event of Default that occurred during the previous fiscal year. The Indenture provides that if a Default or Event of Default occurs, is continuing and, in the case of payment default, is actually known to a responsible officer of the Trustee, or, in all cases (including payment default) written notice has been provided to a responsible officer of the Trustee, the Trustee must give each holder of notes notice of the Default or Event of Default within 90 days after the occurrence thereof. Except in the case of a Default or Event of Default in the payment of principal of, premium, if any, or interest on any note, the Trustee may withhold notice if and so long as a committee of its trust officers in good faith determines that withholding notice is in the interests of the holders of notes.
Legal Defeasance and Covenant Defeasance
The Company may, at its option and at any time, elect to have its obligations discharged with respect to the outstanding notes and all obligations of the Subsidiary Guarantors under the Note Guarantees discharged (“Legal Defeasance”). Such Legal Defeasance means that the Company will be deemed to have paid and discharged the entire indebtedness represented by the outstanding notes and Note Guarantees after the deposit specified in clause (1) of the second following paragraph, except for:
(1) the rights of holders of notes to receive payments in respect of the principal of, premium, if any, and interest on the notes when such payments are due;
(2) the Company’s obligations with respect to the notes concerning issuing temporary notes, registration of notes, mutilated, destroyed, lost or stolen notes and the maintenance of an office or agency for payments;
(3) the rights, powers, trust, duties and immunities of the Trustee and the Company’s and the Subsidiary Guarantors’ obligations in connection therewith; and
(4) the Legal Defeasance provisions of the Indenture.
In addition, the Company may, at its option and at any time, elect to have its obligations and the obligations of the Subsidiary Guarantors released with respect to certain covenants (including, without limitation, obligations to make Change of Control Offers, Asset Sale Offers, the obligations described under “—Certain Covenants” and the cross-acceleration provisions and judgment default provisions described under “—Events of Default”) that are described in the Indenture (“Covenant Defeasance”) and thereafter any omission to comply with such obligations will not constitute a Default or Event of Default with respect to the notes or the Note Guarantees. In the event Covenant Defeasance occurs, certain events (not including non-payment, bankruptcy, receivership, reorganization and insolvency events) described under “—Events of Default” will no longer constitute an Event of Default with respect to the notes.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the holders of notes cash in U.S. dollars, certain direct non-callable obligations of, or guaranteed by, the United States, or a combination thereof, in such amounts as will be sufficient without reinvestment, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, premium, if any, and interest (including Additional Amounts) on the notes on the stated date for payment thereof or on the applicable redemption date, as the case may be;
(2) in the case of Legal Defeasance, the Company has delivered to the Trustee an Opinion of Counsel from counsel in the United States reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) and independent of the Company to the effect that:
(a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or
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(b) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, the holders of notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company has delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) to the effect that the holders of notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) in the case of Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee:
(a) an Opinion of Counsel from counsel in Mexico reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) and independent of the Company to the effect that, based upon Mexican law then in effect, holders of notes will not recognize income, gain or loss for Mexican tax purposes, including withholding tax except for withholding tax then payable on interest payments due, as a result of Legal Defeasance or Covenant Defeasance, as the case may be, and will be subject to Mexican taxes on the same amounts and in the same manner and at the same time as would have been the case if such Legal Defeasance or Covenant Defeasance, as the case may be, had not occurred, or
(b) a ruling directed to the Trustee received from the tax authorities of Mexico to the same effect as the Opinion of Counsel described in clause (a) above;
(5) no Default or Event of Default shall have occurred and be continuing on the date of the deposit pursuant to clause (1) of this paragraph (except any Default or Event of Default resulting from the failure to comply with “—Certain Covenants—Limitation on Indebtedness” as a result of the borrowing of the funds required to effect such deposit);
(6) the Trustee has received an Officers’ Certificate stating that such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under the Indenture or any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(7) the Company has delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring holders of notes over any other creditors of the Company or any Subsidiary of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(8) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel reasonably acceptable to the Trustee and independent of the Company, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with (subject to customary exceptions and exclusions); and
(9) the Company has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee and independent of the Company to the effect that the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally (subject to customary exceptions and exclusions).
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Satisfaction and Discharge
The Indenture will be discharged and will cease to be of further effect (except as to surviving rights or registration of transfer or exchange of the notes, as expressly provided for in the Indenture) as to all outstanding notes when:
(1) either:
(a) all the notes theretofor authenticated and delivered (except lost, stolen or destroyed notes which have been replaced or paid and notes for whose payment money has theretofor been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation; or
(b) all notes not theretofor delivered to the Trustee for cancellation have become due and payable, and the Company has irrevocably deposited or caused to be deposited with the Trustee funds or certain direct, non-callable obligations of, or guaranteed by, the United States sufficient without reinvestment to pay and discharge the entire Indebtedness on the notes not theretofor delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the notes to the date of deposit, together with irrevocable instructions from the Company directing the Trustee to apply such funds to the payment;
(2) the Company has paid all other sums payable under the Indenture and the notes by it; and
(3) the Company has delivered to the Trustee an Officers’ Certificate stating that all conditions precedent under the Indenture relating to the satisfaction and discharge of the Indenture have been complied with.
Modification of the Indenture
From time to time, the Company, the Subsidiary Guarantors and the Trustee, without the consent of the holders, may amend the Indenture, the notes or the Note Guarantees for certain specified purposes, including curing ambiguities, defects or inconsistencies, to provide for uncertificated notes in addition to or in place of certificated notes; to provide for the assumption of the Company’s or a Subsidiary Guarantor’s obligations to holders of notes and Note Guarantees in the case of a merger or consolidation or sale of all or substantially all of the Company’s or such Subsidiary Guarantor’s assets, as applicable, to the extent permitted under the Indenture; to make any change that would provide any additional rights or benefits to the holders or that does not adversely affect the legal rights under the Indenture of any such holder; to conform the text of the Indenture, the Note Guarantees or the notes to any provision of this “Description of Notes” to the extent that such provision in this “Description of Notes” was intended to be a verbatim recitation of a provision of the Indenture, the Note Guarantees or the notes; to allow any Subsidiary Guarantor to execute a supplemental indenture and/or a Note Guarantee with respect to the notes and to release Subsidiary Guarantors from the Note Guarantee in accordance with the terms of the Indenture; to comply with the requirements of any applicable securities depositary; to provide for a successor Trustee in accordance with the terms of the Indenture, to otherwise comply with any requirement of the Indenture; to issue Additional Notes, and make any other changes which do not adversely affect the rights of any of the holders in any material respect. The Trustee will be entitled to rely on such evidence as it deems appropriate, including on an Opinion of Counsel and Officers’ Certificate, and shall have no liability whatsoever in reliance upon the foregoing. Other modifications and amendments of the Indenture or the notes may be made with the consent of the holders of a majority in principal amount of the then outstanding notes issued under the Indenture, except that, without the consent of each holder affected thereby, no amendment may:
(1) reduce the amount of notes whose holders must consent to an amendment or waiver;
(2) reduce the rate of or change or have the effect of changing the time for payment of interest, including defaulted interest, on any notes;
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(3) reduce the principal of or change or have the effect of changing the fixed maturity of any notes, or change the date on which any notes may be subject to redemption, or reduce the redemption price therefor;
(4) make any notes payable in money other than that stated in the notes;
(5) make any change in provisions of the Indenture entitling each holder of notes to receive payment of principal of, premium, if any, and interest on such note on or after the due date thereof or to bring suit to enforce such payment, or permitting holders of a majority in principal amount of notes to waive Defaults or Events of Default;
(6) amend, change or modify in any material respect the obligation of the Company to make and consummate a Change of Control Offer in respect of a Change of Control Event that has occurred or make and consummate an Asset Sale Offer with respect to any Asset Sale that has been consummated;
(7) eliminate or modify in any manner a Subsidiary Guarantor’s obligations with respect to its Note Guarantee which adversely affects holders of notes in any material respect, except as contemplated in the Indenture;
(8) make any change in the provisions of the Indenture described under “—Additional Amounts” that adversely affects the rights of any holder or amend the terms of the notes in a way that would result in a loss of exemption from Taxes; and
(9) make any change to the provisions of the Indenture or the notes that adversely affect the ranking of the notes.
Governing Law; Jurisdiction
The Indenture and the notes will be governed by, and construed in accordance with, the law of the State of New York but without giving effect to applicable principles of conflicts of law to the extent that the application of the law of another jurisdiction would be required thereby. Each of the parties to the Indenture consent to the exclusive jurisdiction of the Federal and State courts located in the City of New York, Borough of Manhattan, waive to the fullest extent permitted by law its right to bring action in any other jurisdiction that may apply by virtue of its present or future domicile or for any other reason, and to any objection which it may now or hereafter have to the laying of venue of any suit or proceeding arising out of or relating to the Indenture or the transactions contemplated thereby. Each of the Company and the Subsidiary Guarantors have appointed an agent for service of process with respect to any actions brought in these courts arising out of or based on the Indenture or the notes.
The Trustee
Except during the continuance of an Event of Default, the Trustee will perform only such duties as are specifically set forth in the Indenture. During the existence of an Event of Default, the Trustee will exercise such rights and powers vested in it by the Indenture, and use the same degree of care and skill in its exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
The Indenture contains certain limitations on the rights of the Trustee, should it become a creditor of the Company, to obtain payments of claims in certain cases or to realize on certain property received in respect of any such claim as security or otherwise. The Trustee will be permitted to engage in other transactions; provided, that if the Trustee acquires any conflicting interest, it must eliminate such conflict or resign.
Prescription
Claims against the Company (if any) for payment in respect to the notes shall be prescribed and become void unless made within a period of six years from the appropriate payment date.
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No Personal Liability
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Company or any Subsidiary Guarantor shall not have any liability for any obligations of the Company or such Subsidiary Guarantor under the notes (including the Note Guarantees) or the Indenture or for any claims based on, in respect of or by reason of such obligations or their creation. By accepting a note, each holder waives and releases all such liability.
Currency Indemnity
The Company and each Subsidiary Guarantor will pay all sums payable under the Indenture or the notes solely in U.S. Dollars. Any amount that you receive or recover in a currency other than U.S. Dollars in respect of any sum expressed to be due to you from the Company or any Subsidiary Guarantor will only constitute a discharge to us to the extent of the U.S. Dollar amount which you are able to purchase with the amount received or recovered in that other currency on the date of the receipt or recovery or, if it is not practicable to make the purchase on that date, on the first date on which you are able to do so. If the U.S. Dollar amount is less than the U.S. Dollar amount expressed to be due to you under any note, to the extent permissible under applicable law, the Company and the Subsidiary Guarantors will jointly and severally indemnify you against any loss you sustain as a result. In any event, the Company and the Subsidiary Guarantors will jointly and severally indemnify you against the cost of making any purchase of U.S. Dollars. For the purposes of this paragraph, it will be sufficient for you to certify in a satisfactory manner that you would have suffered a loss had an actual purchase of U.S. Dollars been made with the amount received in that other currency on the date of receipt or recovery or, if it was not practicable to make the purchase on that date, on the first date on which you were able to do so. In addition, you will also be required to certify in a satisfactory manner the need for a change of the purchase date.
The indemnities described above:
constitute a separate and independent obligation from the other obligations of the Company and the Subsidiary Guarantors;
will give rise to a separate and independent cause of action;
will apply irrespective of any indulgence granted by any holder of notes; and
will continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any note.
Certain Definitions
Set forth below is a summary of certain of the defined terms used in the Indenture. Reference is made to the Indenture for a full definition of all such terms, as well as any other terms used herein for which no definition is provided.
“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary or at the time it merges or consolidates with the Company or any of its Restricted Subsidiaries or is assumed in connection with the acquisition of assets from such Person. Such Indebtedness will be deemed to have been Incurred at the time such Person becomes a Restricted Subsidiary or at the time it merges or consolidates with the Company or a Restricted Subsidiary or at the time such Indebtedness is assumed in connection with the acquisition of assets from such Person.
“Additional Amounts” has the meaning set forth under “—Additional Amounts” above.
“Additional Notes” has the meaning set forth under “—Additional Notes” above.
“Affiliate” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person.
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The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.
“Asset Acquisition” means:
(1) an Investment by the Company or any Restricted Subsidiary in any other Person pursuant to which such Person will become a Restricted Subsidiary, or will be merged with or into the Company or any Restricted Subsidiary;
(2) the acquisition by the Company or any Restricted Subsidiary of the assets of any Person (other than a Subsidiary of the Company) which constitute all or substantially all of the assets of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business; or
(3) any Revocation with respect to an Unrestricted Subsidiary.
“Asset Sale” means any direct or indirect sale, disposition, issuance, conveyance, transfer, lease, assignment or other transfer, including a Sale and Leaseback Transaction (each, a “disposition”) by the Company or any Restricted Subsidiary of:
(a) any Capital Stock other than Capital Stock of the Company; or
(b) any property or assets (other than cash, Cash Equivalents or Capital Stock) of the Company or any Restricted Subsidiary;
Notwithstanding the preceding, the following items will not be deemed to be Asset Sales:
(1) the disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries as permitted under “—Certain Covenants—Limitation on Merger, Consolidation and Sale of Assets”;
(2) a disposition of inventory or damaged, worn-out, obsolete or no longer useful assets or properties in the ordinary course of business;
(3) a disposition of assets of the Company or any Restricted Subsidiary or Capital Stock of any Restricted Subsidiary that is not a Bank Regulated Subsidiary in any transaction or series of related transactions with an aggregate Fair Market Value not to exceed U.S.$15.0 million in any fiscal year;
(4) for purposes of “—Certain Covenants—Limitation on Asset Sales and Sales of Subsidiary Stock” only, the making of Restricted Payments or Permitted Investments permitted under “—Certain Covenants—Limitation on Restricted Payments”;
(5) a disposition to the Company or a Restricted Subsidiary, including a Person that is or will become a Restricted Subsidiary immediately after the disposition; provided that, this clause (5) applies only to a disposition by the Company to a Wholly Owned Subsidiary and by a Restricted Subsidiary to another Restricted Subsidiary of which the Company owns, directly or indirectly, an equal or greater percentage of the Common Stock of the transferee than the transferor; provided, however, that, in the case of a Wholly Owned Subsidiary or a Restricted Subsidiary not organized in the United States, any differences in the percentages of the Company’s direct or indirect ownership of the Common Stock of the transferor and the transferee shall be disregarded for purposes of the foregoing where such differences arise solely due to an immaterial amount of
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shares of Capital Stock of such transferor or transferee owned by other Persons as required pursuant to applicable law;
(6) a disposition of accounts receivable in connection with a Receivables Transaction for Fair Market Value thereof;
(7) a disposition of assets received by the Company or any of its Restricted Subsidiaries upon the foreclosure on a Lien in the ordinary course of business; and
(8) the creation of a Lien permitted under the Indenture (other than a deemed Lien in connection with a Sale and Leaseback Transaction).
“Asset Sale Offer” has the meaning set forth under “—Certain Covenants—Limitation on Asset Sales and Sales of Subsidiary Stock.”
“Asset Sale Transaction” means any Asset Sale and, whether or not constituting an Asset Sale, (1) any sale or other disposition of Capital Stock, (2) any Designation with respect to an Unrestricted Subsidiary and (3) any sale or other disposition of property or assets excluded from the definition of Asset Sale by clause (1) of that definition.
“Bank Regulated Subsidiary” means any direct or indirect subsidiary of the Company that is subject to Mexican Law of Credit Institutions (Ley de Instituciones de Crédito), the General Provisions Applicable to Credit Institutions (Disposiciones de Carácter General Aplicables a las Instituciones de Crédito) published on December 2, 2005, as amended from time to time, and other rules and regulations issued from time to time by the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público), Mexican National Banking and Securities (Comisión Nacional Bancaria y de Valores), and the Institute for the Protection of Bank Savings (Instituto de Protección al Ahorro Bancario) (collectively, the “Mexican Banking Regulators”), and is authorized to conduct banking activities as an institución de banca multiple and regulated by the Mexican Banking Regulators. As of the Issue Date, Banco Ahorro Famsa, S.A., Institución de Banca Múltiple, is a Bank Regulated Subsidiary.
“Board of Directors” means, as to any Person, the board of directors, management committee or similar governing body of such Person or any duly authorized committee thereof.
“Board Resolution” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close in New York City or Mexico.
“Capitalized Lease Obligations” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under IFRS. For purposes of this definition, the amount of such obligations at any date will be the capitalized amount of such obligations at such date, determined in accordance with IFRS.
“Capital Stock’ means:
(1) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person;
(2) with respect to any Person that is not a corporation, any and all partnership or other equity or ownership interests of such Person; and
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(3) any warrants, rights or options to purchase any of the instruments or interests referred to in clause (1) or (2) above.
“Cash Equivalents” means:
(1) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof;
(2) Certificados de la Tesoreria de la Federación (Cetes) or Bonos de Desarrollo del Gobierno Federal (Bondes), in each case, issued by the government of Mexico and maturing not later than one year after the acquisition thereof;
(3) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from any of S&P, Moody’s or Fitch or any successor thereto;
(4) commercial paper maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or Moody’s or at least F-1 from Fitch;
(5) demand deposits, certificates of deposit, time deposits or bankers’ acceptances maturing within one year from the date of acquisition thereof issued by (a) any bank organized under the laws of the United States of America or any state thereof or the District of Columbia, (b) any U.S. branch of a non-U.S. bank having at the date of acquisition thereof combined capital and surplus of not less than U.S.$500 million, or (c) in the case of Mexican peso deposits, any of the five top-rated banks (as evaluated by an internationally recognized rating agency) organized under the laws of Mexico;
(6) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) above entered into with any bank meeting the qualifications specified in clause (5) above; and
(7) investments in money market funds which invest substantially all of their assets in securities of the types described in clauses (1) through (6) above.
“Change of Control” means the occurrence of one or more of the following events:
(1) any Person or Group other than the Permitted Holders is or becomes the beneficial owner (as defined below), directly or indirectly, in the aggregate of more than 50% of the total voting power of the Voting Stock of the Company (including a Surviving Entity, if applicable);
(2) the Company consolidates with, or merges with or into, another Person, or the Company sells, conveys, assigns, transfers, leases or otherwise disposes of all or substantially all of the assets of the Company, determined on a consolidated basis, to any Person, other than a transaction where the Person or Persons that, immediately prior to such transaction “beneficially owned” the outstanding Voting Stock of the Company are, by virtue of such prior ownership, the “beneficial owners” in the aggregate of a majority of the total voting power of the then outstanding Voting Stock of the surviving or transferee person (or if such surviving or transferee Person is a direct or indirect wholly-owned subsidiary of another Person, such Person who is the ultimate parent entity), in each case whether or not such transaction is otherwise in compliance with the Indenture; or
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(3) the approval by the shareholders of the Company of any plan or proposal for the liquidation or dissolution of the Company, whether or not otherwise in compliance with the provisions of the Indenture.
For purposes of this definition:
(a) “beneficial owner” will have the meaning specified in Rules 13d-3 and 13d-5 under the Exchange Act, except that any Person or Group will be deemed to have “beneficial ownership” of all securities that such Person or Group has the right to acquire, whether such right is exercisable immediately, only after the passage of time or, except in the case of the Permitted Holders, upon the occurrence of a subsequent condition;
(b) “Person” and “Group” will have the meanings for “person” and “group” as used in Sections 13(d) and 14(d) of the Exchange Act; and
(c) the Permitted Holders or any other Person or Group will be deemed to beneficially own any Voting Stock of a Person held by any other Person (the “parent entity”) so long as the Permitted Holders or such other Person or Group, as the case may be, beneficially own, directly or indirectly, in the aggregate at least 50% of the voting power of the Voting Stock of the parent entity and no other Person or Group beneficially owns an equal or greater amount of the Voting Stock of the parent entity.
“Change of Control Event” means (i) the occurrence of a Change of Control; and (ii) the reduction in the rating of the notes by any Rating Agency by one or more categories (i.e., notches), at any time within 60 days (which period shall be extended so long as the rating of the notes is under publicly announced consideration for possible downgrade by any Rating Agency) commencing the first date of public notice of a Change of Control, or of the Company’s intention to effect a Change of Control; provided, that any such rating decline shall not be deemed to be in respect of a Change of Control unless the applicable Rating Agency announces or publicly confirms or informs the Trustee in writing at its request that such decrease in rating of the notes was the result of, in whole or in part, any event or circumstance comprised of or arising as a result of, or in respect of, such Change of Control.
“Change of Control Payment” has the meaning set forth under “Change of Control.”
“Change of Control Payment Date” has the meaning set forth under “Change of Control.”
“Common Stock” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common equity interests, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common equity interests.
“Consolidated EBITDA” means, for any Person for any period, Consolidated Net Income for such Person for such period, plus the following, without duplication, to the extent deducted or added in calculating such Consolidated Net Income:
(1) Consolidated Income Tax Expense for such Person for such period;
(2) Consolidated Interest Expense for such Person for such period;
(3) Consolidated Non-cash Charges for such Person for such period;
(4) net after-tax losses from Asset Sale Transactions or abandonments or reserves relating thereto for such period; and
(5) any income or loss from discontinued operations;
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less (x) all non-cash credits and gains increasing Consolidated Net Income for such Person for such period, other than any items which represent the reversal in such period of any accrual of, or cash reserve for, anticipated charges in any prior period where such accrual or reserve is no longer required under IFRS and (y) all cash payments made by such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) during such period relating to non-cash charges that were added back in determining Consolidated EBITDA in any prior period.
Notwithstanding the foregoing, the items specified in clauses (1) and (3) above for any Subsidiary (Restricted Subsidiary in the case of the Company) will be added to Consolidated Net Income in calculating Consolidated EBITDA for any period:
(a) in proportion to the percentage of the total Capital Stock of such Subsidiary (Restricted Subsidiary in the case of the Company) held directly or indirectly by such Person at the date of determination, and
(b) to the extent that a corresponding amount would be permitted at the date of determination to be distributed to such Person by such Subsidiary (Restricted Subsidiary in the case of the Company) pursuant to its charter and bylaws and each law, regulation, agreement or judgment applicable to such distribution (including, in the case of Bank Regulated Subsidiary, any restrictions on distributions with respect to applicable minimum capital requirements imposed by the Mexican Banking Regulators).
“Consolidated Income Tax Expense” means, with respect to any Person for any period, the provision for U.S. federal, state, local and non-U.S. income taxes payable by such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) for such period as determined on a consolidated basis in accordance with IFRS.
“Consolidated Interest Expense” means, for any Person for any period, the sum of, without duplication determined on a consolidated basis in accordance with IFRS:
(1) the aggregate of cash and non-cash interest expense of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) for such period determined on a consolidated basis in accordance with IFRS, including, without limitation (whether or not interest expense in accordance with IFRS):
(a) any amortization or accretion of debt discount or any interest paid on Indebtedness of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) in the form of additional Indebtedness,
(b) any amortization of deferred financing costs,
(c) the net costs under Hedging Obligations (including amortization of fees),
(d) all capitalized interest,
(e) the interest portion of any deferred payment obligation,
(f) commissions, discounts and other fees and charges Incurred in respect of letters of credit or bankers’ acceptances, and
(g) any interest expense paid in respect of Indebtedness of another Person that is Guaranteed by such Person or one of its Subsidiaries (Restricted Subsidiaries in the case of the Company) or secured by a Lien on the assets of such Person or one of its Subsidiaries (Restricted Subsidiaries in the case of the Company); and
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(2) the interest component of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) during such period.
“Consolidated Leverage Ratio” means, for any Person as of any date of determination, the ratio of the aggregate amount of Consolidated Total Indebtedness of such Person as of such date to Consolidated EBITDA of such Person for the four most recent full fiscal quarters for which financial statements are available ending prior to the date of such determination (the “Four Quarter Period”). For purposes of this definition, “Consolidated Total Indebtedness” and “Consolidated EBITDA” will be calculated after giving effect on a pro forma basis for the period of such calculation to:
(1) the Incurrence, repayment or redemption of any Indebtedness (including Acquired Indebtedness) of such Person or any of its Subsidiaries (Restricted Subsidiaries, in the case of the Company), and the application of the proceeds thereof, including the Incurrence of any Indebtedness (including Acquired Indebtedness), and the application of the proceeds thereof, giving rise to the need to make such determination, occurring during such Four Quarter Period or at any time subsequent to the last day of such Four Quarter Period and on or prior to such date of determination, to the extent such Indebtedness is outstanding on the date of determination, as if such Incurrence, and the application of the proceeds thereof, repayment or redemption occurred on the first day of such Four Quarter Period; and
(2) any Asset Sale Transaction or Asset Acquisition by such Person or any of its Subsidiaries (Restricted Subsidiaries, in the case of the Company), including any Asset Sale Transaction or Asset Acquisition giving rise to the need to make such determination, occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to such date of determination, as if such Asset Sale Transaction or Asset Acquisition occurred on the first day of the Four Quarter Period.
Furthermore, the amount of Indebtedness under any revolving credit facility will be computed based on:
(a) the average daily balance of such Indebtedness during such Four Quarter Period, or
(b) if such facility was created after the end of such Four Quarter Period, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation,
in each case giving pro forma effect to any borrowings related to any transaction referred to in clause (2) above. For the avoidance of doubt, this paragraph shall not apply to any amount repaid under a revolving credit facility to the extent commitments thereunder are permanently reduced by such amount repaid, and shall be given effect on a pro forma basis pursuant to clause (1) above.
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate net income (or loss) of such Person and its Subsidiaries (after deducting (or adding) the portion of such net income (or loss) attributable to minority interests in Subsidiaries of such Person) for such period on a consolidated basis, determined in accordance with IFRS; provided, that there shall be excluded therefrom to the extent reflected in such aggregate net income (loss):
(1) net after-tax gains or losses from Asset Sale Transactions or abandonments or reserves relating thereto;
(2) net after-tax items classified as extraordinary gains or losses;
(3) the net income (but not loss) of any Person, other than such Person and any Subsidiary of such Person (Restricted Subsidiary in the case of the Company); except that, solely for purposes of calculating Consolidated Net Income pursuant to clause (3) of the first paragraph of “—Certain
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Covenants—Limitation on Restricted Payments” only, Consolidated Net Income of the Company will include the Company’s proportionate share of the net income of:
(a) any Person acquired in a “pooling of interests” transaction accrued prior to the date it becomes a Restricted Subsidiary or is merged or consolidated with the Company or any Restricted Subsidiary; or
(b) a Surviving Entity prior to assuming the Company’s obligations under the Indenture and the notes pursuant to “—Certain Covenants—Limitation on Merger, Consolidation and Sales of Assets”;
(4) the net income (but not loss) of any Subsidiary of such Person (Restricted Subsidiary in the case of the Company) to the extent that a corresponding amount could not be distributed to such Person at the date of determination as a result of any restriction pursuant to the constituent documents of such Subsidiary (Restricted Subsidiary in the case of the Company) or any law, regulation, agreement or judgment applicable to any such distribution (including, in the case of Bank Regulated Subsidiary, any restrictions on distributions with respect to applicable minimum capital requirements imposed by the Mexican Banking Regulators);
(5) any increase (but not decrease) in net income attributable to minority interests in any Subsidiary (Restricted Subsidiary in the case of the Company);
(6) any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time following the Issue Date;
(7) any gain (or loss) from foreign exchange translation or change in net monetary position; and
(8) the cumulative effect of changes in accounting principles.
“Consolidated Non-cash Charges” means, for any Person for any period, the aggregate depreciation, amortization and other non-cash expenses or losses of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) for such period, determined on a consolidated basis in accordance with IFRS (excluding any such charge which constitutes an accrual of or a reserve for cash charges for any future period or the amortization of a prepaid cash expense paid in a prior period).
“Consolidated Total Indebtedness” means, for any Person as of any date of determination, an amount equal to the sum of the aggregate amount (without duplication) of all Indebtedness of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) outstanding at such time, determined on a consolidated basis in accordance with IFRS.
“Consolidated Tangible Assets” means, for any Person at any time, the total consolidated assets of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) as set forth on the balance sheet as of the most recent fiscal quarter of such Person, prepared in accordance with IFRS, less (i) Intangible Assets and (ii) any assets securing Non-Recourse Indebtedness.
“Covenant Defeasance” has the meaning set forth under “Legal Defeasance and Covenant Defeasance.”
“Credit Facilities” means one or more debt facilities, commercial paper facilities or Debt Issuances, in each case with banks, investment banks, insurance companies, mutual funds and/or other institutional lenders or institutional investors providing for revolving credit loans, term loans, letters of credit or Debt Issuances, in each case, as amended, extended, renewed, restated, Refinanced (including, Refinancing with Debt Issuances), supplemented or otherwise modified (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time.
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“Currency Agreement” means, in respect of any Person, any foreign exchange contract, currency swap agreement or other similar agreement as to which such Person is a party designed to hedge foreign currency risk of such Person.
“Debt Issuances” means, with respect to the Company or any Restricted Subsidiary, one or more issuances after the Issue Date of Indebtedness evidenced by notes, debentures, bonds or other similar securities or instruments.
“Default” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default.
“Deposits” means any deposits received from customers of a Bank Regulated Subsidiary, including without limitation, those made through or documented by certificates of deposit, short-term deposits, investments, bank notes (pagarés bancarios) and similar instruments.
“Designation” and “Designation Amount” have the meanings set forth under “—Certain Covenants— Limitation on Designation of Unrestricted Subsidiaries” above.
“Disqualified Capital Stock” means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof, in any case, on or prior to the final maturity date of the notes; provided, however, that any Capital Stock that would not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to require such Person to purchase or redeem such Capital Stock upon the occurrence of an “asset sale” or “change of control” occurring prior to the final maturity of the notes shall not constitute Disqualified Stock if:
(1) the “asset sale” or “change of control” provisions applicable to such Capital Stock are no more favorable to the holders of such Capital Stock than the terms applicable to the notes and described under “—Certain Covenants—Limitation on Sales of Assets and Subsidiary Stock” and “— Change of Control”; and
(2) any such requirement only becomes operative after compliance with such terms applicable to the notes, including the purchase of any notes tendered pursuant thereto.
The amount of any Disqualified Capital Stock shall be equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any. The amount of any Disqualified Stock that does not have a fixed redemption, repayment or repurchase price will be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were redeemed, repaid or repurchased on any date on which the amount of such Disqualified Stock is to be determined pursuant to the Indenture; provided, however, that if such Disqualified Stock could not be required to be redeemed, repaid or repurchased at the time of such determination, the redemption, repayment or repurchase price will be the book value of such Disqualified Stock as reflected in the most recent financial statements of such Person.
“DTC” means The Depository Trust Company.
“Equity Offering” has the meaning set forth under “Optional Redemption.”
“Event of Default” has the meaning set forth under “Events of Default.”
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.
“Fair Market Value” means, with respect to any asset, the price (after taking into account any liabilities relating to such assets) which could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction;
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provided, that the Fair Market Value of any such asset or assets will be determined conclusively by the Board of Directors of the Company acting in good faith, and will be evidenced by a Board Resolution.
“Fitch” means Fitch Ratings and any successor to its rating agency business.
“Four Quarter Period’ has the meaning set forth in the definition of Consolidated Leverage Ratio above.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person:
(1) to purchase or pay, or advance or supply funds for the purchase or payment of, such Indebtedness of such other Person, whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise, or
(2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof, in whole or in part, provided, that “Guarantee” will not include endorsements for collection or deposit in the ordinary course of business. “Guarantee” used as a verb has a corresponding meaning.
“Hedging Obligations” means the obligations of any Person pursuant to any Interest Rate Agreement or Currency Agreement.
“IFRS” means International Financial Reporting Standards as issued by the International Accounting Board as in effect from time to time, or any financial reporting standards required for public companies by the Mexican Comisión Nacional Bancaria de Valores.
“Incur” means, with respect to any Indebtedness or other obligation of any Person, to create, issue, incur (including by conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Indebtedness or other obligation on the balance sheet of such Person (and “Incurrence,” “Incurred” and “Incurring” will have meanings correlative to the preceding).
“Indebtedness” means with respect to any Person, without duplication:
(1) the principal amount (or, if less, the accreted value) of all obligations of such Person for borrowed money (excluding, for the avoidance of doubt, any Deposits);
(2) the principal amount (or, if less, the accreted value) of all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business that are not overdue by 180 days or more or are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted);
(5) all letters of credit, banker’s acceptances or similar credit transactions, including reimbursement obligations in respect thereof;
(6) Guarantees and other contingent obligations of such Person in respect of Indebtedness referred to in clauses (1) through (5) above and clauses (8) through (10) below;
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(7) all Indebtedness of any other Person of the type referred to in clauses (1) through (6) which is secured by any Lien on any property or asset of such Person, the amount of such Indebtedness being deemed to be the lesser of the Fair Market Value of such property or asset or the amount of the Indebtedness so secured;
(8) all obligations under Hedging Obligations of such Person;
(9) all liabilities recorded on the balance sheet of such Person in connection with a sale or other disposition of accounts receivables and related assets;
(10) all Disqualified Capital Stock issued by such Person; and
(11) to the extent not otherwise included in this definition, the Receivables Transaction Amount outstanding relating to any Receivables Transaction.
“Independent Financial Advisor” means an accounting firm, appraisal firm, investment banking firm or consultant of internationally recognized standing that is, in the judgment of the Company’s Board of Directors, qualified to perform the task for which it has been engaged and which is independent in connection with the relevant transaction.
“Intangible Assets” means with respect to any Person all unamortized debt discount and expense, unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights and all other items which would be treated as intangibles on the consolidated balance sheet of such Person prepared in accordance with IFRS.
“Interest Rate Agreement” of any Person means any interest rate protection agreement (including, without limitation, interest rate swaps, caps, floors, collars, derivative instruments and similar agreements) and/or other types of hedging agreements designed to hedge interest rate risk of such Person.
“Investment” means, with respect to any Person, any:
(1) direct or indirect loan, advance or other extension of credit (including, without limitation, a Guarantee) to any other Person,
(2) capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others) other Person, or
(3) any purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by, any other Person.
“Investment” will exclude accounts receivable or deposits arising in the ordinary course of business. “Invest,” “Investing” and “Invested” will have corresponding meanings.
For purposes of the “Limitation on Restricted Payments” covenant, the Company will be deemed to have made an “Investment” in an Unrestricted Subsidiary at the time of its Designation, which will be valued at the Fair Market Value of the sum of the net assets of such Unrestricted Subsidiary at the time of its Designation and the amount of any Indebtedness of such Unrestricted Subsidiary or owed to the Company or any Restricted Subsidiary immediately following such Designation. Any property transferred to or from an Unrestricted Subsidiary will be valued at its Fair Market Value at the time of such transfer. If the Company or any Restricted Subsidiary sells or otherwise disposes of any Capital Stock of a Restricted Subsidiary (including any issuance and sale of Capital Stock by a Restricted Subsidiary) such that, after giving effect to any such sale or disposition, such Restricted Subsidiary would cease to be a Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any such sale or disposition equal to sum of the Fair Market Value of the Capital Stock of such former Restricted Subsidiary held by the Company or any Restricted Subsidiary immediately following such sale or other disposition and the amount of any Indebtedness of such former Restricted Subsidiary Guaranteed by the Company
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or any Restricted Subsidiary or owed to the Company or any other Restricted Subsidiary immediately following such sale or other disposition.
“Investment Grade Rating” means a rating equal to or higher than (i) BBB- (or the equivalent) by S&P, (ii) Baa3 (or the equivalent) by Moody’s and (ii) BBB- (or the equivalent) by Fitch, or, if any such entity ceases to rate the notes for reasons outside of the control of the Company, the equivalent investment grade credit rating by any other Rating Agency.
“Investment Return” means, in respect of any Investment (other than a Permitted Investment) made after the Issue Date by the Company or any Restricted Subsidiary:
(1) the cash proceeds received by the Company or any Restricted Subsidiary upon the sale, liquidation or repayment of such Investment or, in the case of a Guarantee, the amount of the Guarantee upon the unconditional release of the Company and its Restricted Subsidiaries in full, less any payments previously made by the Company or any Restricted Subsidiary in respect of such Guarantee;
(2) in the case of the Revocation of the Designation of an Unrestricted Subsidiary, an amount equal to the lesser of:
(a) the Company’s Investment in such Unrestricted Subsidiary at the time of such Revocation;
(b) that portion of the Fair Market Value of the net assets of such Unrestricted Subsidiary at the time of Revocation that is proportionate to the Company’s equity interest in such Unrestricted Subsidiary at the time of Revocation; and
(c) the Designation Amount with respect to such Unrestricted Subsidiary upon its Designation which was treated as a Restricted Payment; and
(3) in the event the Company or any Restricted Subsidiary makes any Investment in a Person that, as a result of or in connection with such Investment, becomes a Restricted Subsidiary, the existing Investment of the Company and its Restricted Subsidiaries in such Person, in the case of each of (1), (2) and (3), up to the amount of such Investment that was treated as a Restricted Payment under “—Certain Covenants—Limitation on Restricted Payments” less the amount of any previous Investment Return in respect of such Investment.
“Issue Date” means the first date of issuance of notes under the Indenture, May 31, 2013.
“Legal Defeasance” has the meaning set forth under “Legal Defeasance and Covenant Defeasance.”
“Lien” means any lien, mortgage, deed of trust, pledge, security trust (Fidecomiso de Garantías), security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest); provided that the lessee in respect of a Capitalized Lease Obligation or Sale and Leaseback Transaction will be deemed to have Incurred a Lien on the property leased thereunder.
“Mexican Banking Regulators” has the meaning set forth in the definition of “Bank Regulated Subsidiary.”
“Mexican Restructuring” means any case or other proceeding against the Company or any Subsidiary with respect to it or its debts under any bankruptcy, concurso mercantil, quiebra, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, conciliador, liquidator, custodian or other similar official of it or any substantial part of its property.
“Moody’s” means Moody’s Investors Service, Inc., or any successor thereto.
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“Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents, including payments in respect of deferred payment obligations when received in the form of cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries from such Asset Sale, net of:
(1) reasonable out-of-pocket expenses and fees relating to such Asset Sale (including, without limitation, legal, accounting and investment banking fees and sales commissions);
(2) taxes paid or payable in respect of such Asset Sale after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements;
(3) repayment of Indebtedness secured by a Lien permitted under the Indenture that is required to be repaid in connection with such Asset Sale; and
(4) appropriate amounts to be provided by the Company or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with IFRS, against any liabilities associated with such Asset Sale and retained by the Company or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, but excluding any reserves with respect to Indebtedness.
“Non-Recourse Indebtedness” with respect to any Person means Indebtedness of such Person for which (1) the sole legal recourse for collection of principal and interest on such Indebtedness is against the specific property identified in the instruments evidencing or securing such Indebtedness and such property was acquired with the proceeds of such Indebtedness or such Indebtedness was incurred within 365 days after the acquisition or construction of such property and (2) no other assets of such Person may be realized upon in collection of principal or interest on such Indebtedness.
“Note Guarantee” means any guarantee of the Company’s Obligations under the notes and the Indenture provided by a Restricted Subsidiary pursuant to the Indenture.
“Obligations” means, with respect to any Indebtedness, any principal, interest (including, without limitation, Post-Petition Interest), penalties, fees, indemnifications, reimbursements, damages, and other liabilities payable under the documentation governing such Indebtedness, including in the case of the notes and the Note Guarantees, the Indenture.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company (except as otherwise provided in the Indenture) and which opinion shall be reasonably acceptable to the Trustee.
“Permitted Acquisition Indebtedness” means Indebtedness of the Company or any of its Restricted Subsidiaries to the extent such Indebtedness was Indebtedness of (i) a Subsidiary prior to the date on which such Subsidiary became a Restricted Subsidiary or (ii) a Person that was merged or amalgamated into the Company or a Restricted Subsidiary, provided that on the date such Subsidiary became a Restricted Subsidiary or the date such Person was merged and amalgamated into the Company or a Restricted Subsidiary, as applicable, after giving pro forma effect thereto, (a) the Company, would be permitted to incur at least U.S.$1.00 of additional Indebtedness pursuant to paragraph (1) under “—Certain Covenants—Limitation on Incurrence of Additional Indebtedness,” or (b) the Consolidated Leverage Ratio of the Company and the Restricted Subsidiaries would be less than the Consolidated Leverage Ratio immediately prior to such transaction.
“Permitted Business” means the business or businesses conducted by the Company and its Restricted Subsidiaries as of the Issue Date and any business ancillary or complementary thereto.
“Permitted Holders” means (i) Mr. Humberto Garza González and any member of the Board of Directors of the Company on the Issue Date, (ii) a parent, brother or sister of any of the individuals named in clause (i),
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(iii) the spouse or a former spouse of any individual named in clause (i) or (ii), (iv) the lineal descendants of any person named in clauses (i) through (iii) and the spouse or a former spouse of any such lineal descendant, (v) the estate or any guardian, custodian or other legal representative of any individual named in clauses (i) through (iv), (vi) Fidecomiso No. F/007 (Trust No. F/007) and Fidecomiso No. F/715 (Trust No. F/715) with Deutsche Bank Mexico, S.A., Institución de Banca Múltiple, Division Fiduciaria, as trustee, and any trust established primarily for the benefit of any one or more of the individuals named in clauses (i) through (v), and (vii) any Person in which all of the equity interests are owned, directly or indirectly, by any one or more of the Persons named in clauses (i) through (vi).
“Permitted Indebtedness” has the meaning set forth under clause (2) of “—Certain Covenants—Limitation on Incurrence of Additional Indebtedness.”
“Permitted Investments” means:
(1) Investments by the Company or any Restricted Subsidiary in any Person that is, or that result in any Person becoming, immediately after such Investment, a Restricted Subsidiary or constituting a merger or consolidation of such Person into the Company or with or into a Restricted Subsidiary, except for a Guarantee of Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor;
(2) Investments by any Restricted Subsidiary in the Company;
(3) Investments in cash and Cash Equivalents;
(4) any extension, modification or renewal of any Investments existing as of the Issue Date (but not Investments involving additional advances, contributions or other investments of cash or property or other increases thereof, other than as a result of the accrual or accretion of interest or original issue discount or payment-in-kind pursuant to the terms of such Investment as of the Issue Date);
(5) Investments permitted pursuant to clause (2)(b) or (e) of “—Certain Covenants—Limitation on Transactions with Affiliates”;
(6) Investments received as a result of the bankruptcy or reorganization of any Person or taken in settlement of or other resolution of claims or disputes, and, in each case, extensions, modifications and renewals thereof;
(7) Investments made by the Company or its Restricted Subsidiaries as a result of non-cash consideration permitted to be received in connection with an Asset Sale made in compliance with the covenant described under “—Certain Covenants—Limitation on Asset Sales and Sales of Subsidiary Stock”;
(8) Investments in the form of Hedging Obligations permitted under clause (2)(e) of “—Certain Covenants—Limitation on Incurrence of Additional Indebtedness;”
(9) Investments in a Person engaged in a Permitted Business not to exceed 3.0% of Consolidated Tangible Assets of the Company and its Restricted Subsidiaries at any one time outstanding;
(10) receivables owing to the Company or any Restricted Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(11) payroll, travel, entertainment, relocation and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
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(12) loans or advances to employees made in the ordinary course of business consistent with past practices of the Company or such Restricted Subsidiary;
(13) Investments in any Person to the extent such Investments consist of prepaid expenses, negotiable instruments held for collection and lease, utility and workers’ compensation, performance and other similar deposits made in the ordinary course of business by the Company or any Restricted Subsidiary;
(14) Investments in a Receivables Entity in connection with a Receivables Transaction; provided that such Investment in any such Person is in the form of any equity interest or interests in receivables and related assets generated by the Company or any Restricted Subsidiary and transferred to such Person in connection with a Receivables Transaction;
(15) Investments in existence on the Issue Date; and
(16) Investments in Capital Stock, obligations or securities received in settlement of claims or disputes related to debts created in the ordinary course of business and owing to the Company or any Restricted Subsidiary or received as a result of bankruptcy, insolvency receivership or reorganization of any Person.
“Permitted Liens” means any of the following:
(1) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens imposed by law incurred in the ordinary course of business for sums not yet delinquent or being contested in good faith, if such reserve or other appropriate provision, if any, as shall be required by IFRS shall have been made in respect thereof;
(2) Liens Incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, including any Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection therewith, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);
(3) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(4) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds thereof;
(5) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of the Company or a Restricted Subsidiary, including rights of offset and set-off;
(6) Liens securing Hedging Obligations that relate to Indebtedness that is Incurred in accordance with “—Certain Covenants—Limitation on Incurrence of Additional Indebtedness” and that are secured by the same assets as secure such Hedging Obligations;
(7) Liens existing on the Issue Date and Liens to secure any Refinancing Indebtedness which is Incurred to Refinance any Indebtedness below which has been secured by a Lien permitted under the covenant described under “—Certain Covenants—Limitation on Liens” not Incurred pursuant to clause (10), (11) or (12) and which Indebtedness has been Incurred in accordance with “—
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Certain Covenants—Limitation on Incurrence of Additional Indebtedness”; provided, that such new Liens:
(a) are no less favorable to the holders of notes and are not more favorable to the lienholders with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced and
(b) do not extend to any property or assets other than the property or assets securing the Indebtedness Refinanced by such Refinancing Indebtedness;
(8) Liens securing Indebtedness under the Credit Facilities (or Guarantees thereof) in an aggregate principal amount outstanding at any one time not to exceed the greater of (x) U.S.$75.0 million and (y) 3.0% of Consolidated Tangible Assets of the Company and its Restricted Subsidiaries;
(9) Liens securing Acquired Indebtedness Incurred in accordance with “—Certain Covenants— Limitation on Incurrence of Additional Indebtedness” not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation; provided, that
(a) such Liens secured such Acquired Indebtedness at the time of and prior to the Incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary and were not granted in connection with, or in anticipation of the Incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary and
(b) such Liens do not extend to or cover any property of the Company or any Restricted Subsidiary other than the property that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of the Company or a Restricted Subsidiary and are no more favorable to the lienholders than the Liens securing the Acquired Indebtedness prior to the Incurrence of such Acquired Indebtedness by the Company or a Restricted Subsidiary;
(10) purchase money Liens securing Purchase Money Indebtedness or Capitalized Lease Obligations Incurred in accordance with “—Certain Covenants—Limitation on Incurrence of Additional Indebtedness”; provided, that:
(a) the related Purchase Money Indebtedness does not exceed the cost of such property and shall not be secured by any property of the Company or any Restricted Subsidiary other than the property so acquired, and
(b) the Lien securing such Indebtedness will be created within 90 days of such acquisition;
(11) Liens securing Indebtedness Incurred by a Bank Regulated Subsidiary pursuant to clause (m) of paragraph (2) under “—Certain Covenants—Limitation on Incurrence of Additional Indebtedness”;
(12) Liens securing an amount of Indebtedness (including all Refinancing thereof) outstanding at any one time not to exceed the greater of (x) U.S.$40.0 million and (y) 1.50% of Consolidated Tangible Assets of the Company and its Restricted Subsidiaries;
(13) any pledge or deposit of cash or property in conjunction with obtaining surety and performance bonds and letters of credit required to engage in constructing on-site and off-site improvements required by municipalities or other governmental authorities in the ordinary course of business;
(14) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
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(15) Liens encumbering customary initial deposits and margin deposits, and other Liens that are customary in the industry and incurred in the ordinary course of business securing Indebtedness under Hedging Obligations and forward contracts, options, futures contracts, futures options or similar agreements or arrangement designed to protect the Company and its Restricted Subsidiaries from fluctuations in the price of commodities;
(16) Liens for Taxes that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with IFRS has been made therefor;
(17) licenses of intellectual property in the ordinary course of business;
(18) Liens to secure a defeasance trust;
(19) easements, rights of way zoning and similar restrictions, reservations, restrictions or encumbrances in respect of real property or title defects that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties (as such properties are used by the Company or its Restricted Subsidiaries) or materially impair their use in the operation of the business of the Company and its Restricted Subsidiaries;
(20) Liens arising from precautionary Uniform Commercial Code financing statement filings regarding operating leases entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business;
(21) judgment Liens not giving rise to an Event of Default so long as any appropriate legal proceedings that may have been duly initiated for the review of such judgment shall not have been finally terminated or the period within which such legal proceedings may be initiated shall not have expired;
(22) Liens on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary; or
(23) Liens on accounts receivable or related assets incurred in connection with a Receivables Transaction.
“Person” means an individual, partnership, limited partnership, corporation, company, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.
“Post-Petition Interest” means all interest accrued or accruing after the commencement of any insolvency or liquidation proceeding (and interest that would accrue but for the commencement of any insolvency or liquidation proceeding) in accordance with and at the contract rate (including, without limitation, any rate applicable upon default) specified in the agreement or instrument creating, evidencing or governing any Indebtedness, whether or not, pursuant to applicable law or otherwise, the claim for such interest is allowed as a claim in such insolvency or liquidation proceeding.
“Preferred Stock” of any Person means any Capital Stock of such Person that has preferential rights over any other Capital Stock of such Person with respect to dividends, distributions or redemptions or upon liquidation.
“Purchase Money Indebtedness” means Indebtedness Incurred for the purpose of financing all or any part of the purchase price, or other cost of construction or improvement of any property (other than Capital Stock); provided, that the aggregate principal amount of such Indebtedness does not exceed the lesser of the Fair Market Value of such property or such purchase price or cost, including any Refinancing of such Indebtedness that does not increase the aggregate principal amount (or accreted amount, if less) thereof as of the date of Refinancing.
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“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock and any warrants, rights or options to purchase or acquire Capital Stock that is not Disqualified Capital Stock that are not convertible into or exchangeable into Disqualified Capital Stock.
“Rating Agencies” means S&P, Moody’s and Fitch or, if S&P, Moody’s or Fitch or all of them shall not make a rating publicly available on the notes, or, in the case of the definition of “Cash Equivalents,” the relevant security, a nationally recognized United States securities rating agency or agencies, as the case may be, selected by the Company, which shall be substituted for S&P, Moody’s or Fitch or each of them, as the case may be.
“Receivables Entity” means a Person in which the Company or any Restricted Subsidiary makes an Investment and:
(1) to which the Company or any Restricted Subsidiary transfers receivables and related assets in connection with a Receivables Transaction;
(2) which engages in no activities other than in connection with the Receivables Transaction;
(3) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which:
(a) is guaranteed by the Company or any Restricted Subsidiary (excluding guarantees of Obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings);
(b) is recourse to or obligates the Company or any Restricted Subsidiary in any way other than pursuant to Standard Securitization Undertakings; or
(c) subjects any property or asset of the Company or any Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings;
(4) with which neither the Company nor any Restricted Subsidiary has any material contract, agreement, arrangement or understanding (except in connection with a Receivables Transaction) other than on terms no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Company, other than fees payable in the ordinary course of business in connection with servicing receivables; and
(5) to which neither the Company nor any Restricted Subsidiary has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.
“Receivables Transaction” means any securitization, factoring, discounting or similar financing transaction or series of transactions that may be entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business pursuant to which the Company or any of its Restricted Subsidiaries may sell, convey or otherwise transfer to any Person (including a Receivables Entity), or may grant a security interest in, any receivables (whether now existing or arising in the future) of the Company or any of its Restricted Subsidiaries, and any assets related thereto, including all collateral securing such receivables, all contracts and all guarantees or other obligations in respect of such receivables, the proceeds of such receivables and other assets which are customarily transferred, or in respect of which security interests are customarily granted, in connection with securitization, factoring or discounting involving receivables.
“Receivables Transaction Amount” means the amount of obligations outstanding under the legal documents entered into as part of a Receivables Transaction on any date of determination that would be characterized as principal if such Receivables Transaction were structured as a secured lending transaction rather than a purchase.
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“Refinance” means, in respect of any Indebtedness, to issue any Indebtedness in exchange for or to redeem refinance, replace, defease, discharge or refund such Indebtedness in whole or in part. “Refinanced” and “Refinancing” will have correlative meanings.
“Refinancing Indebtedness” means Indebtedness of the Company or any Restricted Subsidiary issued to Refinance any other Indebtedness of the Company or a Restricted Subsidiary so long as:
(1) the aggregate principal amount (or initial accreted value, if applicable) of such new Indebtedness as of the date of such proposed Refinancing does not exceed the aggregate principal amount (or initial accreted value, if applicable) of the Indebtedness being Refinanced (plus the amount of any premium required to be paid under the terms of the instrument governing such Indebtedness and the amount of reasonable expenses incurred by the Company in connection with such Refinancing);
(2) such new Indebtedness has:
(a) a Weighted Average Life to Maturity that is equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being Refinanced, and
(b) a final maturity that is equal to or later than the final maturity of the Indebtedness being Refinanced; and
(3) except in the case of Refinancing Indebtedness the entire net proceeds of which are promptly used to redeem the notes in whole or in part, or deposited to defease or discharge the notes, in each case in accordance with the Indenture, if the Indebtedness being Refinanced is:
(a) Indebtedness of the Company, then such Refinancing Indebtedness will be Indebtedness of the Company,
(b) Indebtedness of a Subsidiary Guarantor, then such Refinancing Indebtedness will be Indebtedness of the Company and/or such Subsidiary Guarantor, and
(c) Subordinated Indebtedness, then such Refinancing Indebtedness shall be subordinate to the notes or the relevant Note Guarantee, if applicable, at least to the same extent and in the same manner as the Indebtedness being Refinanced.
“Representative” means any trustee, agent or representative (if any) for an issue of Senior Indebtedness of the Company.
“Restricted Payment” has the meaning set forth under “—Certain Covenants—Limitation on Restricted Payments.”
“Restricted Subsidiary” means any Subsidiary of the Company which at the time of determination is not an Unrestricted Subsidiary.
“Revocation” has the meaning set forth under “—Certain Covenants—Limitation on Designation of Unrestricted Subsidiaries.”
“S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any successor to its rating agency business.
“Sale and Leaseback Transaction” means any direct or indirect arrangement with any Person or to which any such Person is a party providing for the leasing to the Company or a Restricted Subsidiary of any property, whether owned by the Company or any Restricted Subsidiary at the Issue Date or later acquired, which has been or
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is to be sold or transferred by the Company or such Restricted Subsidiary to such Person or to any other Person by whom funds have been or are to be advanced on the security of such Property.
“Securities Act” means the Securities Act of 1933, as amended, or any successor statute or statutes thereto.
“Senior Indebtedness” means the notes and the Note Guarantees and any other Indebtedness of the Company or any Subsidiary Guarantor that ranks equal in right of payment with the notes or the relevant Note Guarantee, as the case may be.
“Significant Subsidiary” means a Subsidiary of the Company constituting a “Significant Subsidiary” of the Company in accordance with Rule 1-02(w) of Regulation S-X under the Securities Act in effect on the date hereof.
“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Company or any Restricted Subsidiary which are reasonably customary in securitization of receivables transactions.
“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency unless such contingency has occurred).
“Subordinated Indebtedness” means, with respect to the Company or any Subsidiary Guarantor, any Indebtedness of the Company or such Subsidiary Guarantor, as the case may be which is expressly subordinated in right of payment to the notes or the relevant Note Guarantee, as the case may be.
“Subsidiary” means, with respect to any Person, any other Person of which such Person owns, directly or indirectly, more than 50% of the voting power of the other Person’s outstanding Voting Stock.
“Subsidiary Guarantor” means any Restricted Subsidiary which provides a Note Guarantee pursuant to the Indenture until such time as its Note Guarantee is released in accordance with the Indenture; provided that a Restricted Subsidiary that is a Bank Regulated Subsidiary shall not provide a Note Guarantee hereunder.
“Surviving Entity” has the meaning set forth under “—Certain Covenants—Limitation on Merger, Consolidation and Sale of Assets.”
“Unrestricted Subsidiary” means any Subsidiary of the Company Designated as such pursuant to “— Certain Covenants—Limitation on Designation of Unrestricted Subsidiaries.” Any such Designation may be revoked by a Board Resolution of the Company, subject to the provisions of such covenant.
“U.S. Dollar Equivalent” means with respect to any monetary amount in a currency other than U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained by converting such non-U.S. dollar currency involved in such computation into U.S. dollars at the spot rate for the purchase of U.S. dollars with the applicable non-U.S. dollar currency as published in The Wall Street Journal in the “Exchange Rates” column under the heading “Currency Trading” on the date two Business Days prior to such determination.
“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer’s option.
“Voting Stock” with respect to any Person, means securities of any class of Capital Stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors (or equivalent governing body) of such Person.
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“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years (calculated to the nearest one-twelfth) obtained by dividing:
(1) the then outstanding aggregate principal amount or liquidation preference, as the case may be, of such Indebtedness into
(2) the sum of the products obtained by multiplying:
(a) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal or liquidation preference, as the case may be, including payment at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment.
“Wholly Owned Subsidiary” means, for any Person, any Subsidiary (Restricted Subsidiary in the case of the Company) of which all the outstanding Capital Stock (other than, in the case of a Subsidiary not organized in the United States, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) is owned by such Person or any other Person that satisfies this definition in respect of such Person.
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BOOK-ENTRY, DELIVERY AND FORM
General
The notes are being offered and sold only:
to qualified institutional buyers (“QIBs”) in reliance on Rule 144A (the “Rule 144A Notes”), or
to persons other than “U.S. persons” (as defined in Regulation S) in offshore transactions in reliance on Regulation S (the “Regulation S Notes”).
The notes will be issued in fully registered global form in minimum denominations of U.S.$2,000 and integral multiples of U.S.$1,000 in excess thereof. The notes will be issued on the issue date therefor only against payment in immediately available funds.
Rule 144A Notes initially will be represented by a single permanent global certificate (which may be subdivided) without interest coupons (the “Rule 144A Global Note”). Regulation S Notes initially will be represented by a single permanent global certificate (which may be subdivided) without interest coupons (the “Regulation S Global Note” and together with the Rule 144A Global Note, the “Global Notes”).
The Global Notes will be deposited upon issuance with the Trustee, as custodian for DTC, in New York, New York, and registered in the name of DTC or its nominee for credit to an account of a direct or indirect participant in DTC, including Euroclear, and Clearstream, as described below under “—Depositary Procedures.”
Except as set forth below, the Global Notes may be transferred, in whole and not in part, only to another nominee of DTC or to a successor of DTC or its nominee. Beneficial interests in the Global Notes may not be exchanged for notes in certificated form except in the limited circumstances described below under “—Exchange of Book-Entry Notes for Certificated Notes.”
The notes will be subject to certain restrictions on transfer and will bear a restrictive legend as described under “Notice to Investors.” In addition, transfers of beneficial interests in the Global Notes will be subject to the applicable rules and procedures of DTC and its direct or indirect participants (including, if applicable, those of Euroclear and Clearstream), which may change from time to time.
Depositary Procedures
The following description of the operations and procedures of DTC, Euroclear and Clearstream are provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to changes by them. The Company takes no responsibility for these operations and procedures and urges investors to contact the systems or their participants directly to discuss these matters.
DTC has advised us that it is:
a limited purpose trust company organized under the laws of the State of New York;
a “banking organization” within the meaning of the New York Banking Law;
a member of the U.S. Federal Reserve System;
a “clearing corporation” within the meaning of the Uniform Commercial Code, as amended; and
a “clearing agency” registered under Section 17A of the Exchange Act.
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DTC was created to hold securities for its participating organizations (collectively, the “Participants”) and facilitate the clearance and settlement of transactions in those securities between Participants through electronic book-entry changes in accounts of its Participants. The Participants include securities brokers and dealers (including the initial purchaser), banks, trust companies, clearing corporations and certain other organizations. Access to DTC’s system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly (collectively, the “Indirect Participants”). Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through Participants or Indirect Participants. DTC has no knowledge of the identity of beneficial owners of securities held by or on behalf of DTC. DTC’s records reflect only the identity of Participants to whose accounts securities are credited. The ownership interests and transfer of ownership interests of each beneficial owner of each security held by or on behalf of DTC are recorded on the records of the Participants and Indirect Participants.
DTC has also advised the Company that, pursuant to procedures established by DTC:
upon deposit of the Global Notes, DTC will credit the accounts of Participants designated by the initial purchasers with portions of the principal amount of the Global Notes; and
ownership of such interests in the Global Notes will be shown on, and the transfer of ownership of such interests will be effected only through, records maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners of beneficial interests in the Global Notes).
Investors in the Global Notes may hold their interests therein directly through DTC, if they are Participants in such system, or indirectly through organizations (including Euroclear and Clearstream) that are Participants or Indirect Participants in such system. Euroclear and Clearstream will hold interests in the notes on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositaries. The depositaries, in turn, will hold interests in the notes in customers’ securities accounts in the depositaries’ names on the books of DTC.
All interests in a Global Note, including those held through Euroclear or Clearstream, will be subject to the procedures and requirements of DTC. Those interests held through Euroclear or Clearstream will also be subject to the procedures and requirements of these systems. The laws of some states require that certain persons take physical delivery of certificates evidencing securities they own. Consequently, the ability to transfer beneficial interests in a Global Note to such persons will be limited to that extent. Because DTC can act only on behalf of Participants, which in turn act on behalf of Indirect Participants, the ability of beneficial owners of interests in a Global Note to pledge such interests to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of such interests, may be affected by the lack of a physical certificate evidencing such interests. For certain other restrictions on the transferability of the notes, see “—Exchange of Book-Entry Notes for Certificated Notes.”
Except as described below, owners of interests in the Global Notes will not have notes registered in their names, will not receive physical delivery of notes in certificated form and will not be considered the registered owners or holders thereof under the Indenture for any purpose.
Payments in respect of the principal of and premium, if any, and interest on a Global Note registered in the name of DTC or its nominee will be payable by the Trustee (or the paying agent if other than the Trustee) to DTC in its capacity as the registered holder under the Indenture. The Company and the Trustee will treat the persons in whose names the notes, including the Global Notes, are registered as the owners thereof for the purpose of receiving such payments and for any and all other purposes whatsoever. Consequently, none of the Company, the Trustee or any agent of the Company or the Trustee has or will have any responsibility or liability for:
any aspect of DTC’s records or any Participant’s or Indirect Participant’s records relating to or payments made on account of beneficial ownership interests in the Global Notes, or for maintaining, supervising or reviewing any of DTC’s records or any Participant’s or Indirect Participant’s records relating to the beneficial ownership interests in the Global Notes; or
any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants.
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DTC has advised the Company that its current practice, upon receipt of any payment in respect of securities such as the notes (including principal and interest), is to credit the accounts of the relevant Participants with the payment on the payment date in amounts proportionate to their respective holdings in the principal amount of the relevant security as shown on the records of DTC, unless DTC has reason to believe it will not receive payment on such payment date. Payments by the Participants and the Indirect Participants to the beneficial owners of the notes will be governed by standing instructions and customary practices and will be the responsibility of the Participants or the Indirect Participants and will not be the responsibility of DTC, the Trustee or the Company. Neither the Company nor the Trustee nor any agent of the Company or the Trustee will be liable for any delay by DTC or any of its Participants in identifying the beneficial owners of the notes, and the Company and the Trustee and their respective agents may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes.
Except for trades involving only Euroclear and Clearstream participants, interests in the Global Notes are expected to be eligible to trade in DTC’s Same-Day Funds Settlement System and secondary market trading activity in such interests will therefore settle in immediately available funds, subject in all cases to the rules and procedures of DTC and its Participants.
Subject to the transfer restrictions described under “Notice to Investors,” transfers between Participants in DTC will be effected in accordance with DTC’s procedures, and will be settled in same-day funds, and transfers between participants in Euroclear and Clearstream will be effected in accordance with their respective rules and operating procedures.
Subject to the transfer restrictions described under “Notice to Investors,” cross-market transfers between Participants in DTC, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected through DTC in accordance with DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by their depositaries. Cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in that system in accordance with the rules and procedures and within the established deadlines (Brussels time) of that system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its respective depositaries to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant Global Note in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear and Clearstream participants may not deliver instructions directly to the depositaries for Euroclear or Clearstream.
Because of time zone differences, the securities account of a Euroclear or Clearstream participant purchasing an interest in a Global Note from a Participant in DTC will be credited and reported to the relevant Euroclear or Clearstream participant, during the securities settlement processing day (which must be a business day for Euroclear and Clearstream) immediately following the settlement date of DTC. DTC has advised the Company that cash received in Euroclear or Clearstream as a result of sales of interests in a Global Note by or through a Euroclear or Clearstream participant to a Participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTC’s settlement date.
DTC has advised the Company that it will take any action permitted to be taken by a holder of notes only at the direction of one or more Participants to whose account with DTC interests in the Global Notes are credited and only in respect of such portion of the aggregate principal amount of the notes as to which such Participant or Participants has or have given such direction.
Although DTC, Euroclear and Clearstream have agreed to the foregoing procedures to facilitate transfers of interests in the Global Notes among participants in DTC, Euroclear and Clearstream, they are under no obligation to perform or to continue to perform such procedures, and the procedures may be discontinued at any time. Neither the Company nor the Trustee will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
The information in this section concerning DTC, Euroclear and Clearstream and their book-entry systems has been obtained from sources that the Company believes to be reliable, but the Company takes no responsibility for the accuracy thereof.
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Exchange of Book-Entry Notes for Certificated Notes
The Global Notes are exchangeable for certificated notes in definitive, fully registered form without interest coupons (“Certificated Notes”) only in the following limited circumstances:
DTC notifies the Company that it is unwilling or unable to continue as depositary for the Global Note or DTC ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to be so registered in order to act as depositary, and in each case the Company fails to appoint a successor depositary within 90 days of such notice; or
upon the request of a holder, if there shall have occurred and be continuing an Event of Default with respect to the notes.
In all cases, Certificated Notes delivered in exchange for any Global Note or beneficial interests therein will be registered in the names, and issued in any approved denominations, requested by or on behalf of DTC (in accordance with its customary procedures) and will bear the applicable restrictive legend referred to in “Notice to Investors,” unless the Company determines otherwise in accordance with the Indenture and in compliance with applicable law.
Transfers Within and Between Global Notes
Through and including the 40th day after the later of the commencement of the offering of the notes and the closing of the offering (the “40-day Period”), beneficial interests in the Regulation S Global Note may be transferred to a person who takes delivery in the form of an interest in the Rule 144A Global Note only if such transfer is made pursuant to Rule 144A and the transferor first delivers to the Trustee a certificate (in the form provided in the Indenture) to the effect that such transfer is being made to a person who the transferor reasonably believes is a QIB within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and in accordance with all applicable securities laws of the states of the United States and other jurisdictions. After the expiration of the 40- day Period, beneficial interests in the Regulation S Global Note may be transferred to a person who takes delivery in the form of a beneficial interest in the Rule 144A Global Note without compliance with these certification requirements.
Beneficial interests in the Rule 144A Global Note may be transferred to a person who takes delivery in the form of a beneficial interest in the Regulation S Global Note only upon receipt by the Trustee of a written certification (in the form provided in the Indenture) from the transferor to the effect that such transfer is being made in accordance with Regulation S or Rule 144 under the Securities Act (if available).
Transfers of beneficial interests in the Regulation S Global Note for beneficial interests in the Rule 144A Global Note or vice versa will be effected by DTC by means of an instruction originated by the Trustee through the DTC Deposit/Withdraw at Custodian system. Accordingly, in connection with any transfer, appropriate adjustments will be made to reflect a decrease in the principal amount of the Regulation S Global Note and a corresponding increase in the principal amount of the Rule 144A Global Note or vice versa, as applicable. Any beneficial interest in one of the Global Notes that is transferred to a person who takes delivery in the form of an interest in another Global Note will, upon transfer, cease to be an interest in such Global Note and will become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interests in such other Global Note for so long as it remains such an interest.
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TAXATION
General
The following summary contains a description of the material U.S. and Mexican federal tax consequences of the purchase, ownership and disposition of the notes by certain non-Mexican resident holders. This summary does not purport to be a comprehensive description of all the U.S. and Mexican federal income tax considerations that may be relevant to a decision to purchase, hold or dispose of the notes and does not address all of the Mexican federal tax consequences that may be applicable to specific holders of the notes. The summary does not address any tax consequences under the laws of any state, municipality or locality of the United States or Mexico or the laws of any taxing jurisdiction other than the federal tax laws of Mexico and the United States.
This summary is based on the Mexican Federal Income Tax Law (Ley del Impuesto sobre la Renta), the Federal Fiscal Code (Código Fiscal de la Federación) and regulations in effect on the date of this offering circular, all of which are subject to change, possibly with retroactive effect, or to new or different interpretations, which could affect the continued validity of this summary. The current tax regime could be modified by the competent authorities in Mexico during the term of the notes. We assume no obligation to inform about modifications in the Mexican federal tax provisions or interpretations applicable throughout the term of the notes.
Prospective investors, including Mexican resident investors, should consult their own tax advisors as to the Mexican, United States and other tax consequences of the purchase, ownership and disposition of the notes, including, in particular, the effect of any foreign (non-Mexican and non-U.S.), state or local tax laws or any double taxation treaty.
The tax implications described herein may vary depending on the applicability of a treaty for the avoidance of double taxation. Mexico has also entered into or is negotiating several double taxation treaties with various jurisdictions that may have an impact on the tax treatment of the purchase, ownership or disposition of the notes. Prospective purchasers of the notes should consult their own tax advisors as to the tax consequences, if any, of the application of any such treaties.
Mexican Federal Tax Considerations
General
The following is a general summary of the principal Mexican federal income tax consequences of the acquisition, ownership and disposition of the notes by holders that are not residents of Mexico, for Mexican federal tax purposes, and that do not hold such notes through a permanent establishment in Mexico for tax purposes, to which income under the notes is attributable; for purposes of this summary, each such holder is referred to as a “foreign holder”.
This summary does not address all of the Mexican tax consequences that may be applicable to specific holders of the notes and does not purport to be a comprehensive description of all the Mexican tax considerations that may be relevant to a decision to purchase, own or dispose of the notes. In particular, this summary does not describe any tax consequences arising under the laws of any state, municipality or taxing jurisdiction other than certain federal laws of Mexico.
Potential investors should consult with their own tax advisors regarding the particular consequences of the purchase, ownership or disposition of the notes under the federal laws of Mexico or any other jurisdiction or under any applicable double taxation treaty to which Mexico is a party, which is in effect.
For purposes of Mexican taxation, an individual or corporation that does not satisfy the requirements to be considered a resident of Mexico for tax purposes, as specified below, is deemed a non-resident of Mexico for Federal tax purposes and a foreign holder for purposes of this summary.
An individual is a resident of Mexico for tax purposes, if he/she established his/her home in Mexico. When the individual in question has a home in Mexico and in another country, the individual will be deemed a resident in Mexico if his/her center of vital interests is located in Mexican territory. This will be deemed to occur if (i) more
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than 50.0% of the aggregate income obtained by such individual in the calendar year is from a Mexican source or (ii) the principal center of his/her professional activities is located in Mexico. Mexican residents who filed a change of tax residence to a country or jurisdiction that does not have a comprehensive exchange of information agreement with Mexico and where his/her income is subject to a preferential tax regime as defined by Mexican law, will continue to be considered Mexican residents for tax purposes during the year of the filing of notice of such residence change and during the following three years.
A legal entity is a resident of Mexico if it maintains the principal administration of its business or the effective location of its management in Mexico. Under applicable regulations, the principal administration of a business or the effective location of management is deemed to exist in Mexico if the individual or individuals having the authority to decide or execute the day-to-day decisions of control, management, operation or administration are located in Mexico.
If a legal entity or an individual is deemed to have a permanent establishment in Mexico for Mexican tax purposes, all income attributable to that permanent establishment will be subject to Mexican income taxes, in accordance with applicable tax laws.
Payments of Interest
Pursuant to the Mexican Income Tax Law, payments of interest on the notes (including original issue discount, if any, which is deemed to be interest) made by us to foreign holders will be subject to Mexican withholding tax at a rate of 4.9%, if, as expected, the following requirements are met:
a notice is filed with the CNBV pursuant to Article 7 of the Mexican Securities Market Law and the information requirements related to such registration established in the general rules issued by the Tax Administrative Service (Servicio de Administración Tributaria, or “SAT”) are duly complied with;
the notes, as expected, are placed outside of Mexico through banks or brokerage houses, in a country with which Mexico has in force a treaty for the avoidance of double taxation (which currently includes Ireland); and
we timely file with the SAT on a quarterly basis, information, among other things, setting forth that no party related to us, jointly or individually, directly or indirectly, is the effective beneficiary of more than 5.0% of the aggregate amount of each interest payment, and we maintain records that evidence compliance with this requirement.
If any of the above mentioned requirements is not met, the Mexican withholding tax will be 10.0% or higher.
As of the date of this offering circular, the provisions of the income tax treaty between the United States and Mexico is not expected to have any effect on the Mexican tax consequences described in this summary, because, as described above, under Mexico’s Income Tax Law, we expect to be entitled to withhold taxes in connection with interest payments under the notes at a 4.9% rate.
Payments of interest on the notes made by us to non-Mexican pension and retirement funds will be exempt from Mexican withholding tax, provided that:
such fund is duly-incorporated pursuant to the laws of its country of residence and is the effective beneficiary of the interest payment;
such income is exempt from income tax in its country of tax residence; and
such fund is registered before the Registry of Foreign Banks, Financial Entities, Pensions and Retirement Funds and Investment Funds in charge of the SAT in accordance with certain rules issued for these purposes.
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Holders or beneficial owners of the notes may be requested to, subject to specified exceptions and limitations, provide certain information or documentation necessary to enable us to apply the appropriate Mexican withholding tax rate on interest payments under the notes made by us to such holders or beneficial owners. In the event that the specified information or documentation concerning the holder or beneficial owner, if requested, is not timely provided, we may withhold Mexican tax from interest payments on the notes to that holder or beneficial owner at the maximum applicable rate.
Payments of Principal
Under Mexican Income Tax Law, payments of principal on the notes made by us to a foreign holder will not be subject to Mexican income tax withholding.
Taxation of Capital Gains
Under the Mexican Income Tax Law and regulations thereunder, capital gains resulting from the sale or other disposition of the notes by a foreign holder to another foreign holder are not taxable in Mexico. Gains resulting from the sale of the notes by a foreign holder to a Mexican resident for tax purposes or to a foreign holder deemed to have a permanent establishment in Mexico for tax purposes will be subject to the Mexican taxes pursuant to the rules described above with respect to interest payments.
Taxation of Make-Whole Amount
Under the Mexican Income Tax Law and regulations thereunder, the payment of the Make-Whole Amount as the result of the optional redemption of the notes, as provided in “Description of Notes––Optional Redemption”, will be subject to the Mexican taxes pursuant to the rules described above with respect to interest payments.
Other Mexican Taxes
Under current Mexican tax laws, generally there are no estate, inheritance, succession or gift taxes applicable to the acquisition, ownership or disposition of the notes by a foreign holder. Gratuitous transfers of the notes in certain circumstances may result in the imposition of a Mexican federal tax upon the recipient. There is no Mexican stamp, issuer registration or similar taxes or duties payable by foreign holders of the notes with respect to the notes.
The above description is not intended to constitute a complete analysis of all Mexican federal tax consequences relating to the acquisition, ownership and disposition of the notes. Prospective purchasers of the notes should consult their own tax advisors concerning the tax consequences of their particular situations.
U.S. Federal Income Tax Considerations
This section summarizes certain material U.S. federal income tax consequences of the purchase, ownership and disposition of notes, but it does not purport to be a comprehensive description of all the tax considerations that may be relevant to a decision to purchase, own and dispose of notes. This summary does not describe any tax consequences arising under the laws of any state, locality or taxing jurisdiction other than the United States.
This summary is for general information only and is based upon provisions of the Internal Revenue Code of 1986, as amended (the “Code”), existing and proposed Treasury regulations thereunder, and rulings and decisions all as of the date of this offering circular and all of which are subject to change or differing interpretations at any time, possibly with retroactive effect. This discussion only applies to notes that are:
purchased by those initial United States Holders (defined below) who purchase notes in this offering for cash at the “issue price” listed on the cover page of this offering circular; and
held as capital assets within the meaning of Section 1221 of the Code.
For purposes of the following discussion, a “United States Holder” means a beneficial owner of a note that is, for U.S. federal income tax purposes:
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a citizen or individual resident of the United States;
a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States or any state thereof or the District of Columbia;
an estate the income of which is subject to U.S. federal income taxation regardless of its source; or
a trust if either (a) it is subject to the primary supervision of a court within the United States and one or more “U.S. persons” (as defined in section 7701(a)(30) of the Code) has the authority to control all substantial decisions of the trust or (b) it made a valid election, which remains in effect, under applicable treasury regulations to be treated as a U.S. person.
This summary does not discuss considerations or consequences relevant to beneficial owners of the notes that are subject to special provisions of U.S. federal income tax law, such as:
entities that are tax-exempt for U.S. federal income tax purposes and retirement plans, individual retirement accounts and tax-deferred accounts;
pass-through entities (including partnerships and entities and arrangements classified as partnerships for U.S. federal income tax purposes) and beneficial owners of pass-through entities;
certain U.S. expatriates;
persons that are subject to the alternative minimum tax;
financial institutions, insurance companies, and dealers or traders in securities or currencies;
U.S. holders having a “functional currency” other than the U.S. Dollar; and
persons that will hold the notes as part of a constructive sale, wash sale, conversion transaction or other integrated transaction or a straddle, hedge or synthetic security.
If a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) holds a note, the U.S. federal income tax treatment of a partner in such a partnership will generally depend upon the status of the partner and the activities of the partnership. A holder of notes that is a partnership, and partners in such a partnership, should consult with their tax advisors about the U.S. federal income tax consequences of the acquisition, ownership and disposition of such notes.
This summary does not address the effect of any U.S. federal tax laws other than the U.S. federal income tax laws (such as U.S. federal estate or gift tax laws) or any U.S. state or local tax laws on a beneficial owner of the notes. This discussion assumes that each beneficial owner of the notes will comply with the certification procedures described in “Description of the Notes — Certain Covenants — Additional Amounts” as may be necessary to obtain a reduced rate of withholding tax under Mexican law.
Prospective investors are encouraged to consult their own tax advisors regarding the U.S. federal, state, local and non-U.S. income and other tax consequences of the purchase, ownership, sale and other disposition of the notes. No rulings from the Internal Revenue Service, or the IRS, have been or will be sought regarding any matter discussed herein. No assurance can be given that the IRS would not assert, or that a court would not sustain, a position contrary to any of the statements made and conclusions reached with respect to the tax aspects set forth below.
Circular 230 Disclosure. TO ENSURE COMPLIANCE WITH INTERNAL REVENUE SERVICE CIRCULAR 230, HOLDERS ARE HEREBY NOTIFIED THAT: (A) ANY DISCUSSION OF FEDERAL TAX ISSUES IN THIS OFFERING CIRCULAR IS NOT INTENDED OR WRITTEN BY US TO BE RELIED UPON, AND CANNOT BE RELIED UPON BY HOLDERS FOR THE PURPOSE OF AVOIDING PENALTIES THAT
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MAY BE IMPOSED ON HOLDERS UNDER THE INTERNAL REVENUE CODE; (B) SUCH DISCUSSION IS WRITTEN IN CONNECTION WITH THE PROMOTION OR MARKETING OF THE TRANSACTIONS OR MATTERS ADDRESSED HEREIN; AND (C) HOLDERS SHOULD SEEK ADVICE BASED ON THEIR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
Effect of Certain Contingencies. Under the terms of the notes, amounts in excess of stated interest or principal may be required to be paid in certain circumstances. It is possible that the IRS could assert that the payment of such excess amounts is a “contingent payment,” and the notes are therefore contingent payment debt instruments for U.S. federal income tax purposes. Under the applicable U.S. Treasury Regulations, such excess amounts should not cause the notes to be subject to special rules applicable to contingent payment debt instruments if, based on all the facts and circumstances as of the date on which the notes are issued, there is only a remote likelihood that any contingencies causing the payment of such excess amounts will occur, or if such excess amounts, in the aggregate, are considered incidental. We believe that the possibility of paying excess amounts is remote and/or that such amounts are incidental and, consequently, the notes would not be treated as contingent payment debt instruments.
Our determination that these contingencies are remote and/or incidental is binding on you unless you disclose your contrary position to the IRS in the manner that is required by applicable U.S. Treasury regulations. Our determination is not, however, binding on the IRS. It is possible that the IRS might take a different position from that described above, in which case the timing, character and amount of taxable income in respect of the notes may differ adversely from that described herein. United States Holders should consult their own tax advisors regarding this issue. The remainder of this discussion assumes that the notes are not treated as contingent payment debt instruments.
Interest and Additional Amounts. The amount of interest on a note (including Additional Amounts) will generally be taxable to a United States Holder as ordinary interest income at the time it is paid or accrued in accordance with the United States Holder’s method of accounting for U.S. federal income tax purposes.
In determining a United States Holder’s U.S. federal income tax liability, such holder will be treated as actually receiving any amount withheld by us (and paid over to Mexican taxing authorities) with respect to a note as well as any Additional Amount payable by us. Such treatment will be required regardless of whether we are required to pay Additional Amounts so that the amount of Mexican withholding taxes does not reduce the net amount actually received by the holder of the note.
Disposition of Notes. Unless a non-recognition provision of the U.S. federal income tax law applies, upon the sale, exchange, redemption, retirement or other taxable disposition of a note, a United States Holder generally will recognize taxable gain or loss equal to the difference, if any, between the amount realized (i.e., the sum of cash plus the fair market value of all other property received) on the disposition and the United States Holder’s adjusted tax basis in the note. For these purposes, the amount realized does not include any amount attributable to accrued but unpaid interest, which will be treated as ordinary income. In addition, if Mexican income tax is withheld on a taxable disposition of a note, the amount realized by a United States Holder will include the gross amount of the proceeds of that taxable disposition before deduction of the Mexican income tax. A United States Holder’s adjusted tax basis in a note generally will equal the price paid by the United States Holder for the note reduced by any cash payments received on the note other than stated interest.
Gain or loss recognized on the sale, redemption, retirement or other taxable disposition of a note will be capital gain or loss and will be long-term capital gain or loss if the holding period for such note is more than one year. Long-term capital gains recognized by individuals and certain other non-corporate United States Holders generally are eligible for reduced rates of taxation. The deductibility of capital losses is subject to limitations.
Foreign Tax Credit Considerations. Interest (including Additional Amounts) paid on the notes will constitute foreign source income, and will generally be “passive category income” for purposes of computing the foreign tax credit allowable to a United States Holder. A United States Holder may be eligible to claim the Mexican taxes withheld as a credit or deduction for purposes of computing its U.S. federal income tax liability, subject to some limitations (including that the election to deduct or credit foreign taxes applies to all of a United States Holder’s foreign taxes for a particular tax year), even though the payment of these taxes will be remitted by us.
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A United States Holder who is eligible for the benefits of the U.S.-Mexico treaty may be able to elect to treat capital gain or loss, if any, realized on the sale, exchange or other taxable disposition of a note that is subject to Mexican income tax as foreign source gain or loss for U.S. foreign tax credit purposes. Consequently, in the case of gain from the disposition of a note that is subject to Mexican income tax, a United States Holder, subject to a number of complex limitations and conditions (including a minimum holding period requirement), may be able to obtain a foreign tax credit for that Mexican income tax. Otherwise, gain or loss realized by a United States Holder on the sale, exchange or other taxable disposition of a note generally will be treated as United States source income or loss for tax purposes and such tax generally will not be available as a credit for the United States Holder against U.S. federal income tax unless such holder has other income from foreign sources, in the appropriate category for purposes of the foreign tax credit rules.
The rules relating to the calculation and timing of foreign tax credits and, in the case of a United States Holder that elects to deduct foreign taxes, the availability of deductions, involves the application of complex rules that depend upon a United States Holder’s particular circumstances. United States Holders should consult with their own tax advisors with regard to the availability of a credit or deduction in respect of foreign taxes and, in particular, the application of the foreign tax credit rules to their particular situations.
Medicare Surtax. Certain United States Holders who are individuals, estates or trusts are required to pay a 3.8% Medicare surtax on the lesser of (1) such United States Holder’s net investment income (in the case of individuals) or undistributed net investment income (in the case of estates and trusts) (which includes, among other things, any interest on and capital gains from the sale or other taxable disposition of the notes) for the relevant taxable year and (2) the excess of the United States Holder’s modified gross income (in the case of individuals) or adjusted gross income (in the case of estates and trusts) for the taxable year over a certain threshold. United States Holders should consult their tax advisors regarding the effect, if any, of this legislation on their ownership and disposition of the notes.
Information Reporting and Backup Withholding. In general, information reporting requirements may apply to payments of principal and interest on a note, and the proceeds of a sale, exchange, redemption or other taxable disposition of a note, made to United States Holders. Backup withholding may apply to such payments or proceeds if the beneficial owner fails to provide an IRS Form W-9 containing such United States Holder’s correct taxpayer identification number and otherwise comply with the applicable backup withholding rules. Penalties also may be imposed on a recipient that fails to supply a valid IRS Form W-9 or other evidence of exemption from backup withholding.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules from a payment made to a holder generally may be claimed as a refund or a credit against such holder’s U.S. federal income tax liability provided the appropriate information is timely furnished to the IRS.
You should consult your own tax advisors about any tax reporting or filing obligations you may have as a result of acquiring, owning or disposing of the notes.
THE U.S. AND MEXICAN FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL INFORMATION ONLY AND IS NOT TAX ADVICE. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE NOTES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN, AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN THE U.S. FEDERAL, MEXICAN OR OTHER TAX LAWS.
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NOTICE TO INVESTORS
The notes have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of U.S. persons except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. Accordingly, the notes are being offered hereby only (a) to “qualified institutional buyers” (as defined in Rule 144A under the Securities Act), or QIBs, in compliance with Rule 144A under the Securities Act and (b) in offers and sales that occur outside the United States to persons other than U.S. persons (“non-U.S. purchasers,” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for non-U.S. beneficial owners (other than an estate or trust)), in offshore transactions meeting the requirements of Rule 903 of Regulation S. As used herein, the terms “offshore transactions,” “United States” and “U.S. person” have the respective meanings given to them in Regulation S.
Each purchaser of notes will be deemed to have represented and agreed with us and the initial purchasers as follows:
(1) It is purchasing the notes for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is (a) a QIB, and is aware that the sale to it is being made in reliance on Rule 144A under the Securities Act or (b) a non-U.S. purchaser that is outside the United States (or a non-U.S. purchaser that is a dealer or other fiduciary as referred to above);
(2) It understands that the notes are being offered in a transaction not involving any public offering in the United States within the meaning of the Securities Act, that the notes have not been and will not be registered under the Securities Act, and that the notes may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except as set forth below;
(3) It shall not resell or otherwise transfer any of such notes prior to (a) the date which is one year (or such shorter period of time as permitted by Rule 144(d)(1) under the Securities Act or any successor provision thereunder) after the later of the date of original issuance of the notes and (b) such later date, if any, as may be required by applicable laws except:
● to the Company or any of its subsidiaries;
● pursuant to a registration statement which has been declared effective under the Securities Act;
● within the United States to a QIB in compliance with Rule 144A under the Securities Act;
● outside the United States to non-U.S. purchasers in offshore transactions meeting the requirements of Rule 904 of Regulation S under the Securities Act; or
● pursuant to another available exemption from the registration requirements of the Securities Act;
It agrees that it will give notice of any restrictions on transfer of such notes to each person to whom it transfers the notes;
It understands that the certificates evidencing the notes (other than the Regulation S global notes) will bear a legend substantially to the following effect unless otherwise agreed by us and the trustee:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR OTHER SECURITIES LAWS, AND NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
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BENEFICIAL INTEREST HEREIN, THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT IT, AND ANY ACCOUNT FOR WHICH IT IS ACTING, (A) IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) OR (B) IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN “OFFSHORE TRANSACTION” PURSUANT TO RULE 903 OR 904 OF REGULATION S AND, WITH RESPECT TO (A) AND (B), EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO SUCH ACCOUNT, (2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY INTEREST HEREIN PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS DEFINED IN THE NEXT PARAGRAPH), EXCEPT (A) (I) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (II) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, (III) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A, (IV) IN AN OFFSHORE TRANSACTION COMPLYING WITH THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (V) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS, AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
THE RESALE RESTRICTION TERMINATION DATE WILL BE THE DATE:
(1) THAT IS AT LEAST ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF; AND (2) ON WHICH THE COMPANY INSTRUCTS THE TRUSTEE THAT THIS LEGEND (OTHER THAN THE FIRST PARAGRAPH HEREOF) SHALL BE DEEMED REMOVED FROM THIS SECURITY, IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE RELATING TO THIS SECURITY.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH THE ABOVE PARAGRAPHS, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS, OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.*
______* This legend (other than the first paragraph hereof) shall be deemed removed from the face of this Security without further action of the Company, the Trustee, or the holders of this Security at such time as the Company instructs the Trustee to remove such legend pursuant to the Indenture.
If it is a non-U.S. purchaser acquiring a beneficial interest in a Regulation S global note offered pursuant to this offering circular, it acknowledges and agrees that, until the expiration of the 40-day “distribution compliance period” within the meaning of Regulation S, any offer, sale, pledge or other transfer shall not be made by it in the United States or to, or for the account or benefit of, a U.S. person, except pursuant to Rule 144A to a QIB taking delivery thereof in the form of a beneficial interest in a U.S. global note, and that each Regulation S global note will contain a legend to substantially the following effect:
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PRIOR TO EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S (“REGULATION S”) UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”)), THIS SECURITY MAY NOT BE REOFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF THE INDENTURE REFERRED TO HEREIN.
THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE SECURITIES. NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR DELIVERED, EXCEPT AS PERMITTED ABOVE.
NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL HEREOF OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE INDENTURE.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH THE ABOVE PARAGRAPHS, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS, OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
It acknowledges that the foregoing restrictions apply to holders of beneficial interests in the notes, as well as holders of the notes;
It acknowledges that the trustee will not be required to accept for registration of transfer any notes acquired by it, except upon presentation of evidence satisfactory to the Issuer and the trustee that the restrictions set forth herein have been complied with; and
It acknowledges that the Company, the trustee, the initial purchasers and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations and agreements and agrees that if any of the acknowledgments, representations or agreements deemed to have been made by its purchase of the notes are no longer accurate, it shall promptly notify the Issuer, the trustee and the initial purchasers. If it is acquiring the notes as a fiduciary or agent for one or more investor accounts, it represents that it has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgments, representations and agreements on behalf of each such account.
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PLAN OF DISTRIBUTION
Under the terms and subject to the conditions contained in a purchase agreement dated May 23, 2013 we have agreed to sell to the initial purchasers and the initial purchasers have severally agreed to purchase, the principal amount of the notes opposite their name on the table herein.
Initial Purchasers Principal Amount Credit Suisse Securities (USA) LLC U.S.$ 150,000,000 Citigroup Global Markets Inc. U.S.$ 100,000,000 Total ...... U.S.$ 250,000,000
The purchase agreement provides that each initial purchaser is obligated to purchase all of the notes which it has agreed to purchase if any are purchased. If an initial purchaser defaults, the purchase agreement provides that the purchase commitments of the non-defaulting initial purchaser may be increased, the commitments of the defaulting initial purchaser may be assumed by other persons satisfactory to the non-defaulting initial purchaser and us, or the purchase agreement may be terminated.
The initial purchasers propose to offer the notes initially at the offering price on the cover page of this offering circular and may also offer the notes to selling group members at the offering price less a concession. After the initial offering, the offering price may be changed.
The notes have not been, and will not be, registered under the Securities Act and they may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except to qualified institutional buyers in reliance on Rule 144A under the Securities Act. Each of the initial purchasers has agreed that, except as permitted by the purchase agreement, it will not offer, sell or deliver the notes (i) as part of its distribution at any time or (ii) otherwise until 40 days after the later of the commencement of this offering and the closing date, within the United States or to, or for the account or benefit of, U.S. persons, and it will have sent to each broker/dealer to which it sells the notes in reliance on Regulation S during such 40-day period, a confirmation or other notice detailing the restrictions on offers and sales of the notes within the United States, or to, or for the account or benefit of, U.S. persons. Terms used in this paragraph have the meanings given to them by Regulation S under the Securities Act. Resales of the notes are restricted as described under “Notice to Investors.”
In addition, until 40 days after the commencement of this offering, an offer or sale of the notes within the United States by a broker/dealer (whether or not it is participating in the offering), may violate the registration requirements of the Securities Act if such offer or sale is made otherwise than pursuant to Rule 144A.
Mexico
The notes have not been and will not be registered with the National Securities Registry maintained by the CNBV, and may not be offered or sold publicly or otherwise be the subject of brokerage activities in Mexico, except pursuant to a private placement exemption set forth under article 8 of the Mexican Securities Market Law. As required under the Mexican Securities Market Law, we will notify the CNBV of the offering of the notes outside of Mexico. Such notice will be delivered to the CNBV to comply with a legal requirement and for information purposes only. The delivery to, and the receipt by, the CNBV of such notice, do not constitute or imply any certification as to the investment quality of the notes, our solvency, liquidity or credit quality or the accuracy or completeness of the information provided in this offering circular. The information contained in this offering circular is exclusively the responsibility of the Company and has not been reviewed or authorized by the CNBV. The acquisition of the notes by an investor who is a resident of Mexico will be made under its own responsibility.
European Economic Area Each of the initial purchasers represents and agrees that, in relation to each member state of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the
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“Relevant Implementation Date”) it has not made and will not make an offer of the notes to the public in that Relevant Member State prior to the publication of a prospectus in relation to the notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive and the 2010 PD Amending Directive to the extent implemented, except that it may, with effect from and including the Relevant Implementation Date, make an offer of notes to the public in that Relevant Member State at any time:
to any legal entity which is a qualified investor as defined in the Prospectus Directive or the PD Amending Directive, if the relevant provision has been implemented;
to fewer than than (i) 100 natural or legal persons per Relevant Member State (other than qualified investors as defined in the Prospectus Directive or the 2010 PD Amending Directive if the relevant provision has been implemented) or (ii) if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150 natural or legal persons per relevant Member State (other than qualified investors as defined in the Prospectus Directive or the 2010 PD Amending Directive if the relevant provision has been implemented), subject to obtaining the prior consent of the relevant Dealer or Dealers nominated by the Issuer for any such offer; or
in any other circumstances which do not require the publication by us of a prospectus pursuant to Article 3 of the Prospectus Directive or Article 3(2) of the 2010 PD Amending Directive to the extent implemented.
For the purposes of this provision, the expression an “offer of notes to the public” in relation to any notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the notes to be offered so as to enable an investor to decide to purchase or subscribe the notes, as the same may be varied in that member state by any measure implementing the Prospectus Directive in that member state. The European Economic Area selling restriction is in addition to any other selling restrictions set out below. The expression Prospectus Directive means Directive 2003/71/EC, and includes any relevant implementing measure in the Relevant Member State, and the expression 2010 PD Amending Directive means Directive 2010/73/EC.
This EEA selling restriction is in addition to any other selling restrictions set out in this offering circular.
United Kingdom Each initial purchaser represents and agrees that:
it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000, or “FSMA”), received by it in connection with the issue or sale of any notes which are subject to the offering contemplated by this offering circular in circumstances in which section 21(1) of the FSMA does not apply to the Issuer; and
it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the notes in, from or otherwise involving the United Kingdom.
Switzerland This offering circular, as well as any other material relating to the notes which are the subject of the offering contemplated by this offering circular, do not constitute an issue prospectus pursuant to Article 652a of the Swiss Code of Obligations. The notes will not be listed on the SWX Swiss Exchange and, therefore, the documents relating to the notes, including, but not limited to, this document, do not claim to comply with the disclosure standards of the listing rules of the SWX Swiss Exchange and corresponding prospectus schemes annexed to the listing rules of the SWX Swiss Exchange. The notes are being offered in Switzerland by way of a private placement, (i.e., to a small number of selected investors only, without any public offer and only to investors who do not purchase the notes with the intention to distribute them to the public). The investors will be individually approached
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by the initial purchasers from time to time. This document, as well as any other material relating to the notes, do not constitute an offer to any other person. This document may only be used by those investors to whom it has been provided in connection with the offering described herein and may neither directly nor indirectly be distributed or made available to other persons without our express consent. It may not be used in connection with any other offer and shall in particular not be copied and/or distributed to the public in (or from) Switzerland.
Japan The notes have not been and will not be registered under the Securities and Exchange Law of Japan (the “Securities and Exchange Law”) and, accordingly, each initial purchaser has undertaken that it will not offer or sell any notes, directly or indirectly, in Japan or to, or for the benefit of any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to a resident of Japan except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Securities and Exchange Law and any other applicable laws, regulations and ministerial guidelines of Japan. For purposes of this paragraph, “resident of Japan” shall have the meaning as defined under the Foreign Exchange and Foreign Trade Law of Japan.
Hong Kong This offering circular has not been approved by or registered with the Securities and Futures Commission of Hong Kong or the Registrar of Companies of Hong Kong. No person may offer or sell in Hong Kong, by means of any document, any notes other than (i) to “professional investors” as defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules made under that Ordinance; or (ii) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies Ordinance (Cap. 32) of Hong Kong or which do not constitute an offer to the public within the meaning of that Ordinance. No person may issue or have in its possession for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or document relating to the notes which is directed at, or the contents of which are likely to be accessed or read by, the public of Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to notes which are or are intended to be disposed of only to persons outside Hong Kong or to “professional investors” as defined in the Securities and Futures Ordinance and any rules made under that Ordinance or to any persons in the circumstances referred to in paragraph (ii) above.
Singapore This offering circular has not been registered as a prospectus with the Monetary Authority of Singapore (the “MAS”) under the Securities and Futures Act, Chapter 289 of Singapore (the “Securities and Futures Act”). Accordingly, this offering circular and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the notes may not be circulated or distributed, nor may the notes be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to the public or any member of the public in Singapore other than (a) to an institutional investor pursuant to Section 274 of the Securities and Futures Act, (b) to a relevant person, or any person pursuant to Section 275(1A) of the Securities and Futures Act, and in accordance with the conditions specified in Section 275 of the Securities and Futures Act, or (c) pursuant to, and in accordance with the conditions of, any other applicable provision of the Securities and Futures Act.
Each of the following relevant persons specified in Section 275 of the Securities and Futures Act which has subscribed or purchased notes, namely a person who is: (i) a corporation (which is not an accredited investor) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or (ii) a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor, should note that shares, debentures and units of shares and debentures of that corporation or the beneficiaries’ rights and interest in that trust shall not be transferable for 6 months after that corporation or that trust has acquired the notes under Section 275 of the Securities and Futures Act except: (a) to an institutional investor under Section 274 of the Securities and Futures Act or to a relevant person, or any person pursuant to Section 275(1A) of the Securities and Futures Act, and in accordance with the conditions, specified in Section 275 of the Securities and Futures Act; (b) where no consideration is given for the transfer; or (c) by operation of law.
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Chile The Company, the Subsidiary Guarantors and the notes are not registered in the Securities Registry (Registro de Valores) or the Foreign Securities Registry (Registro de Valores Extranjeros) of the Chilean Securities and Insurance Commission (Superintendencia de Valores y Seguros de Chile) (“SVS”), or subject to the control and supervision of the SVS. The notes may not be offered or sold in Chile, directly or indirectly, by means of a ‘‘Public Offer’’ (as defined under Chilean Securities Law (Law No 18,045 and regulations from the Superintendencia de Valores y Seguros of the Republic of Chile)). Chilean institutional investors (such as banks, pension funds and insurance companies) are required to comply with specific restrictions relating to the purchase of the notes.
General Each initial purchaser has represented and agreed that it has not offered, sold or delivered and will not offer, sell or deliver any notes directly or indirectly, or distribute this offering circular or any other offering material relating to the notes in or from any jurisdiction, except under circumstances that will result in compliance with the applicable laws and regulations thereof and that will not impose any obligations on us except as set forth in the purchase agreement.
Purchasers of notes sold outside the United States may be required to pay stamp taxes and other charges in compliance with the laws and practices of the country of purchase in addition to the price to investors on the cover page of this offering circular.
Each of the initial purchasers or their respective affiliates have in the past engaged, and may in the future engage, in transactions with and perform services, including commercial banking, financial advisory and investment banking services, for us and our affiliates in the ordinary course of business. Certain of our affiliates may purchase Notes in the offering for the account of their clients.
We have agreed to indemnify each initial purchaser against certain liabilities or to contribute to payments which it may be required to make in that respect.
The notes are a new issue of securities for which there currently is no market. Application has been made to admit the notes to listing on the Official List of the Irish Stock Exchange and to trading on the Global Exchange Market. Each initial purchaser has advised us that it intends to make a market in the notes as permitted by applicable law. It is not obligated, however, to make a market in the notes and any market-making may be discontinued at any time at its sole discretion. Accordingly, no assurance can be given as to the development or liquidity of any market for the notes.
We expect that delivery of the notes will be made against payment for the notes on May 31, 2013, which will be the fifth business day following the date of the pricing of the notes. Since trades in the secondary market generally settle in three business days, purchasers who wish to trade notes on the date of pricing or the next succeeding business day will be required, by virtue of the fact that the notes initially settle in T+5, to specify alternative settlement arrangements to prevent a failed settlement.
Credit Suisse Securities USA (LLC) will act as stabilization manager. The initial purchasers may engage in over-allotment, stabilizing transactions, covering transactions and penalty bids in accordance with Regulation M under the Exchange Act.
Over-allotment involves sales in excess of the offering size, which creates a short position for the initial purchasers.
Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum.
Covering transactions involve purchases of the notes in the open market after the distribution has been completed in order to cover short positions.
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Penalty bids permit the initial purchasers to reclaim a selling concession from a broker/dealer when the notes originally sold by such broker/dealer are purchased in a stabilizing or covering transaction to cover short positions.
These stabilizing transactions, covering transactions and penalty bids may cause the price of the notes to be higher than it would otherwise be in the absence of these transactions. These transactions, if commenced, may be discontinued at any time.
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NOTICE TO CANADIAN INVESTORS
Resale Restrictions
The distribution of the notes in Canada is being made only on a private placement basis exempt from the requirement that we prepare and file a prospectus with the securities regulatory authorities in each province where trades of the notes are made. Any resales of the notes in Canada must be made under applicable securities laws, which may vary depending on the relevant jurisdiction, and which may require resales to be made under available statutory exemptions or under a discretionary exemption granted by the applicable Canadian securities regulatory authority. By purchasing the notes in Canada and accepting delivery of a purchase confirmation, each purchaser is deemed to acknowledge that pursuant to this document they are receiving notice that unless permitted under Canadian securities legislation, the holder of the notes must not trade the security to a resident of Canada before the date that is four months and a day after the distribution date (expected to be October 1, 2013). Purchasers are advised to seek legal advice prior to any resale of the notes.
Representations of Purchasers
By purchasing the notes in Canada and accepting delivery of a purchase confirmation a purchaser is deemed to represent to us, the purchasers and the dealer from whom the purchase confirmation is received that:
the purchaser is entitled under applicable provincial securities laws to purchase the notes without the benefit of a prospectus qualified under those securities laws, as it is an “accredited investor” as defined under National Instrument 45-106 – Prospectus and Registration Exemptions,
the purchaser is a “permitted client” as defined in National Instrument 31-103 - Registration Requirements and Exemptions,
where required by law, that the purchaser is purchasing as principal and not as agent,
the purchaser has reviewed the text above under “Resale Restrictions,” and
the purchaser acknowledges and consents to the provision of specified information concerning the purchase of the notes to the regulatory authority that by law is entitled to collect the information, including certain personal information. For purchasers in Ontario, questions about such indirect collection of personal information should be directed to Administrative Support Clerk, Suite 1903, Box 55, 20 Queen Street West, Toronto, Ontario M5H 3S8 or on (416) 593-3684.
Rights of Action—Ontario Purchasers
Under Ontario securities legislation, certain purchasers who purchase a security offered by this offering circular during the period of distribution will have a statutory right of action for damages, or while still the owner of the notes, for rescission against us in the event that this offering circular contains a misrepresentation without regard to whether the purchaser relied on the misrepresentation. The right of action for damages is exercisable not later than the earlier of 180 days from the date the purchaser first had knowledge of the facts giving rise to the cause of action and three years from the date on which payment is made for the notes. The right of action for rescission is exercisable not later than 180 days from the date on which payment is made for the notes. If a purchaser elects to exercise the right of action for rescission, the purchaser will have no right of action for damages against us. In no case will the amount recoverable in any action exceed the price at which the notes were offered to the purchaser and if the purchaser is shown to have purchased the securities with knowledge of the misrepresentation, we will have no liability. In the case of an action for damages, we will not be liable for all or any portion of the damages that are proven to not represent the depreciation in value of the notes as a result of the misrepresentation relied upon. These rights are in addition to, and without derogation from, any other rights or remedies available at law to an Ontario purchaser. The foregoing is a summary of the rights available to an Ontario purchaser. Ontario purchasers should refer to the complete text of the relevant statutory provisions.
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Enforcement of Legal Rights
All of our directors and officers as well as the experts named herein may be located outside of Canada and, as a result, it may not be possible for Canadian purchasers to effect service of process within Canada upon us or those persons. All or a substantial portion of our assets and the assets of those persons may be located outside of Canada and, as a result, it may not be possible to satisfy a judgment against us or those persons in Canada or to enforce a judgment obtained in Canadian courts against us or those persons outside of Canada.
Taxation and Eligibility for Investment
Canadian purchasers of the notes should consult their own legal and tax advisors with respect to the tax consequences of an investment in the notes in their particular circumstances and about the eligibility of the notes for investment by the purchaser under relevant Canadian legislation.
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GENERAL INFORMATION
Clearing Systems
Application has been made to have the notes accepted for clearance through Euroclear and Clearstream. In addition, application has been made to have the notes accepted for trading in book-entry form by DTC. For the Rule 144A notes, the ISIN number is US40052WAC64 and the CUSIP number is 40052W AC6. For the Regulation S notes, the ISIN number is USP7700WCG35 and the CUSIP number is P7700W CG3.
Listing
Application is expected to be made to the Irish Stock Exchange, for the notes to be traded on the on the Global Exchange Market. Copies of our by-laws, the by-laws of our susbdiary guarantors, the Indenture (which contains the terms of the subsidiary guarantees), as may be amended or supplemented from time to time, our published annual audited consolidated financial statements and any published quarterly unaudited consolidated financial statements will be available in either physical or electronic form at our principal executive offices, as well as at the offices of the trustee, registrar, paying agent and transfer agent, and at the offices of the paying agent in Ireland, as such addresses are set forth in this offering circular. Our subsidiary guarantors do not publish separate non-consolidated financial statements. We do not publish unconsolidated financial statements.
The notes have not been and will not be listed in the BMV or registered with the Mexican National Securities Registry and therefore the notes may not be offered or sold publicly, or otherwise be the subject of brokerage activities in Mexico, except pursuant to a private placement exemption set forth under Article 8 of the Mexican Securities Market Law.
Credit Ratings
We have received a corporate credit rating of “B+” from S&P’s Financial Services LLC. The notes received a rating of “B” from S&P’s Financial Services LLC and “B+” from Fitch Ratings. Note that such ratings are limited in scope, and we cannot assure you that such credit ratings will remain in effect for any given period of time or that such ratings will not be lowered, suspended or withdrawn entirely by the rating agencies. See “Risk Factors—Risk Factors Related to the Notes—We cannot assure you that the credit ratings for the notes will not be lowered, suspended or withdrawn by the rating agencies.”
Authorization
We have obtained all necessary consents, approvals and authorizations in connection with the issuance and performance of the notes.
No Material Adverse Change
Except as disclosed in this offering circular, there has been no material adverse change in the financial position or prospectus of us and our subsidiaries taken as a whole since March 31, 2013.
Litigation
We are from time to time involved in certain legal proceedings not described herein that are incidental to the normal conduct of our business. We do not believe that the outcome of any such proceedings, if decided adversely to our interests, would have a material effect on our financial condition, cash flows or results of operations.
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LEGAL MATTERS
Certain matters relating to the validity of the notes will be passed upon for us by Mijares, Angoitia, Cortés y Fuentes, S.C., Mexico City, Mexico, our special Mexican counsel, and for the initial purchasers by Creel, García- Cuéllar, Aiza y Enríquez, S.C., Mexico City, Mexico. Certain legal matters in connection with this offering of the notes are being passed upon for us by Paul Hastings LLP, and for the initial purchasers by Cleary Gottlieb Steen & Hamilton LLP.
INDEPENDENT ACCOUNTANTS
The consolidated financial statements of Grupo Famsa, S.A.B. de C.V. as of December 31, 2011 and 2012 prepared in accordance with IFRS, included in this offering circular, have been audited by PricewaterhouseCoopers, S.C., independent accountants. PricewaterhouseCoopers, S.C. is a member of numerous associations, including the Mexican Institute of Public Accountants (Instituto Mexicano de Contadores Públicos, A.C.) and the National Association of Fiscal Specialists (Asociación Nacional de Especialistas Fiscales, A. C.).
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INDEX TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS
Annual Consolidated and Combined Financial Statements Page Independent Auditor’s Report ...... F-2 Consolidated Financial Statements: Consolidated Statements of Financial Position as of December 31, 2012 and 2011, and January 1, 2011 ...... F-4 Consolidated Statements of Income as of December 31, 2012 and 2011, and January 1, 2011 ...... F-5 Consolidated Statements of Comprehensive Income as of December 31, 2012 and 2011, and January 1, 2011 ...... F-6 Consolidated Statements of Changes in Stockholders’ Equity as of December 31, 2012 and 2011, and January 1, 2011 ...... F-7 Consolidated Statements of Cash Flows as of December 31, 2012 and 2011, and January 1, 2011 ...... F-8 Notes to the Consolidated Financial Statements ...... F-9
F-1
ANNEX A INCOME STATEMENT AND BALANCE SHEET DATA AND FINANCIAL STATEMENTS AS OF MARCH 31, 2013 AND DECEMBER 31, 2012 AND FOR THE THREE MONTHS ENDED MARCH 31, 2013 AND 2012
Set forth below are our consolidated income statement and balance sheet data and financial statements as of March 31, 2013 and December 31, 2012 and for the three months ended March 31, 2013 and 20121. Results included in this Annex A have been prepared as described in the unaudited interim financial statements attached to this Annex A (the “Interim Financial Statements”). The unaudited financial information set forth in this Annex A should be read in conjunction with our audited consolidated financial statements as of December 31, 2012 and 2011 and for the years ended December 31, 2012, 2011 and 2010, which are included elsewhere in this offering circular, as well as the attached Interim Financial Statements.
Income Statement and Balance Sheet Data
Three Months ended March 31,
2012 2013 2013
(millions of Pesos) (millions of USD)1 Income Statement Data: Total revenues ...... 3,023.6 3,261.8 263.9 Cost of sales ...... (1,537.2) (1,627.3) (131.6) Gross profit ...... 1,486.4 1,634.5 132.2 Selling expenses ...... (677.4) (676.5) (54.7) Administrative expenses ...... (530.7) (595.8) (48.2) Other income (expenses), net ...... 9.0 (17.1) (1.4) Operating profit ...... 287.3 345.2 27.9 Financial expenses, net ...... (95.4) (131.3) (10.6) Profit before income tax ...... 191.9 213.9 17.3 Income tax ...... 101.0 12.1 1.0 Discontinued operations ...... (71.5) — — Consolidated net income ...... 221.4 225.9 18.3 Net income attributable to controlling interest ...... 220.6 225.2 18.2 Net income attributable to non-controlling interest ...... 0.8 0.7 0.1
1 Translated into U.S. Dollars, solely for the convenience of the reader, using an exchange rate of Ps.12.3612 per U.S. Dollar, the Official Exchange Rate in effect on March 31, 2013. This convenience translation should not be construed as a representation that the Mexican Peso amount represent such U.S. Dollar amounts or could be converted into U.S. Dollars at the specified rate or at all.
A-1
As of As of As of December 31, March 31, March 31, 2012 2013 2013 (millions of (millions of Pesos) USD)2 Balance Sheet Data: Cash and cash equivalents ...... 1,528.7 2,223.5 179.9 Trade receivables, net (current) ...... 18,546.4 18,424.6 1,490.5 Inventories ...... 1,950.7 1,962.9 158.8 Total current assets ...... 23,874.4 24,517.5 1,983.4 Trade receivables, net (non-current) ...... 669.1 732.0 59.2 Property, leasehold improvements and furniture and equipment, net ...... 2,370.0 2,317.8 187.5 Total assets ...... 29,069.9 29,862.8 2,415.8 Short-term debt ...... 2,583.8 3,877.3 313.7 Demand deposits and time deposits ...... 8,382.5 8,064.2 652.4 Suppliers ...... 1,562.6 1,198.0 96.9 Total current liabilities ...... 13,398.2 13,877.5 1,122.7 Long-term debt ...... 3,563.6 2,441.0 197.5 Total non-current liabilities ...... 7,382.0 7,466.4 604.0 Total liabilities ...... 20,780.2 21,343.9 1,726.7 Total stockholders’ equity ...... 8,289.7 8,518.9 689.2 Total liabilities and stockholders’ equity ...... 29,069.9 29,862.8 2,415.8
2 Translated into U.S. Dollars, solely for the convenience of the reader, using an exchange rate of Ps. 12.3612 per U.S. Dollar, the Official Exchange Rate in effect on March 31, 2013. This convenience translation should not be construed as a representation that the Mexican Peso amount represent such U.S. Dollar amounts or could be converted into U.S. Dollars at the specified rate or at all.
A-2
Results of Operations for the Quarter ended March 31, 2013 compared with the Quarter ended March 31, 2012 and Balance Sheet Data as of March 31, 2013 compared with December 31, 2012
Total Revenues
During the first quarter of 2013, consolidated total revenues increased 7.9%, to Ps.3,262 million, from Ps.3,024 million during the first quarter in 2012. This increase was driven primarily by Famsa Mexico, which reported total revenues of Ps.2,843 million during the quarter ended March 31, 2013, which represents an 8.9% increase from Ps.2,611 million during the same period in 2012. The rollout of diverse campaigns in Mexico during the first quarter of 2013, particularly “99 semanales o menos” (“99 weekly or less”), reinforced sales of durable goods, in particular household appliances and mobile phones. The increase was partially offset by a 3.8% decrease in Famsa USA’s total revenues to Ps.391 million in the first quarter of 2013, which we believe were lower as a result of a delay in consumers’ tax refunds.
Cost of Sales and Gross Profit
Our consolidated cost of sales reached Ps.1,627 million during the first quarter of 2013, which represents a 5.9% increase compared to Ps.1,537 million during the same period in 2012. This increase in cost of sales is attributable to the increase in total revenues. Cost of sales as a percentage of total revenues fell from 50.8% in the first quarter of 2012 to 49.9% in the first quarter of 2013.
As a result of the significant growth in Famsa Mexico’s total revenues during the first quarter of 2013, our gross profit increased 10.0% to Ps.1,635 million. Consolidated gross margin expanded 95 basis points, from 49.2% in the first quarter of 2012 to 50.1% in the first quarter of 2013.
Operating Expenses
Our operating expenses, which includes selling expenses and administrative expenses, increased 5.3%, from Ps.1,208 million during the first quarter in 2012 to Ps.1,272 million in the first quarter of 2013. As a percentage of total revenues, operating expenses were 39.0% during the first quarter of 2013, which represents a contraction of approximately 95 basis points compared to the same period in 2012.
Selling expenses for the first quarter of 2013 remained almost unchanged from the same period in 2012, falling by only 0.1% to Ps.677 million. Administrative expenses rose 12.3% to Ps.596 million in the first quarter of 2013, compared to Ps.531 million in the same period in 2012.
Financial Expenses, Net
Consolidated financial expenses, net increased 37.7% during the first quarter of 2013, totaling Ps.131 million. Financial expenses grew 6.0% year-over-year, to Ps.178 million during the first quarter of 2013, mainly due to the payment of interest on a higher balance of dollar-denominated debt.
Income Tax
Our income tax benefit decreased 88.1%, from Ps.101 million during the first quarter in 2012 to Ps.12 million during the first quarter of 2013. Our income tax benefit relates primarily to deferred taxes in connection with Banco Ahorro Famsa.
Net Income Attributable to Controlling Interest
Our net income attributable to controlling interest increased 1.8%, from Ps.221 million during the first quarter in 2012 to Ps.225 million during first quarter in 2013, primarily due to the 11.5% growth in profit before income tax, which totaled Ps.214 million, partially offset by the decrease in income tax benefit.
A-3
In addition, as a result of Famsa USA’s divestment process and closures, we did not have any discontinued operations in the first quarter of 2013.
Trade Receivables, Net
As of March 31, 2013, the balance of our trade receivables, less the allowance for doubtful accounts, was Ps.19,157 million, a 0.3% decrease with respect to the Ps.19,215 million reported as of December 31, 2012. The largest variation was in the balance of Famsa USA’s consumer loans, which decreased 10.5% during the first quarter of 2013. The balance of the Mexican consumer loan portfolio grew 1.1% and that of the commercial loan portfolio fell 0.6%, compared to December 31, 2012.
Inventories
As of March 31, 2013, the balance of our inventories was Ps.1,963 million, 0.6% above that as of December 31, 2012.
Net Debt and Bank Deposits
As of March 31, 2013, our net debt decreased 11.3% to Ps.4,095 million, from Ps.4,619 million as of December 31, 2012, as a result of a 45.4% increase in the balance of cash and cash equivalents.
Bank deposits increased 7.2% to Ps.12,865 million as of March 31, 2013, from Ps.11,999 million as of December 31, 2012. BAF’s average cost of funding was 5.31% as of March 31, 2013. Bank deposits continue to offer an optimum source of funding for the loans made to our Mexican customers. The diverse financing products that make up BAF’s bank deposit base (demand deposits, short- and medium-term investments and certificates of deposit) mitigate the Company’s exposure to conventional credit market volatility and have also contributed significantly to reducing the Company’s consolidated cost of funding.
Total Stockholders’ Equity
As of March 31, 2013, our total stockholders’ equity was Ps.8,519 million, an increase of 2.8% compared to December 31, 2012.
A-4
Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed Consolidated Interim Financial Statements (unaudited) March 31, 2013 and December 31, 2012, and for the three months ended March 31, 2013 and 2012
A-5 Grupo Famsa, S. A. B. de C. V. and subsidiaries Consolidated financial statements
Contents
As of December 31, 2012 and 2011 and January 1, 2011
Contents: Page
Condensed consolidated interim financial statements (unaudited):
Condensed consolidated interim statements of financial position ...... A-7
Condensed consolidated interim statements of income ...... A-8
Condensed consolidated interim statements of comprehensive income ...... A-9
Condensed consolidated interim statements of changes in stockholders’ equity ...... A-10
Condensed consolidated interim statements of cash flows ...... A-11
Notes to the condensed consolidated interim financial statements ...... A-12
A-6 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
(Thousands of Mexican pesos)
March 31, December 31,
Assets Note 2013 2012 (Unaudited) (Audited) Current assets: Cash and cash equivalents 4 Ps. 2,223,514 Ps. 1,528,727 Trade receivables, net 6 18,424,551 18,546,393 Recoverable taxes 1,116,242 1,135,713 Other accounts receivable 7 790,243 712,927 Inventories 1,962,915 1,950,663 Total current assets 24,517,465 23,874,423 Non-current assets: Restricted cash 5 361,542 254,905 Trade receivables, net 6 732,037 669,065 Property, leasehold improvements, and furniture and equipment, net 2,317,794 2,370,018 Goodwill and intangible assets, net 299,544 299,572 Guarantee deposits 55,348 53,910 Deferred income tax 12 1,579,065 1,548,033 Total non-current assets 5,345,330 5,195,503 Total assets Ps. 29,862,795 Ps. 29,069,926
Liabilities and Stockholders’ equity Demand deposits and time deposits 8 Ps. 8,064,195 Ps. 8,382,497 Short-term debt 9 3,877,291 2,583,831 Suppliers 1,198,002 1,562,613 Accounts payable and accrued expenses 10 483,090 603,464 Deferred income from guarantee sales 214,532 239,245 Income tax payable 40,379 26,556 Total current liabilities 13,877,489 13,398,206
Non-current liabilities: Time-deposits 8 4,800,693 3,616,767 Long-term debt 9 2,440,998 3,563,611 Deferred income from guarantee sales 129,308 116,387 Employee benefits 95,404 85,240 Total non-current liabilities 7,466,403 7,382,005
Total liabilities 21,343,892 20,780,211
Stockholders’ equity: Capital stock 1,458,286 1,458,286 Additional paid-in capital 2,778,226 2,778,226 Retained earnings 4,061,926 3,836,677 Reserve for repurchase of shares 130,000 130,000 Foreign currency translation adjustment 63,645 60,395
Total stockholders’ equity attributable to shareholders 8,492,083 8,263,584 Non-controlling interest 26,820 26,131
Total stockholders’ equity 8,518,903 8,289,715
Total liabilities and stockholders’ equity Ps. 29,862,795 Ps. 29,069,926
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
A-7 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
(Thousands of Mexican pesos)
March 31 Note 2013 2012
Net sales 15 Ps. 2,223,687 Ps. 2,047,538 Interest earned from customers 15 1,038,153 976,065 Total revenues 3,261,840 3,023,603 Cost of sales (1,627,251) (1,537,212) Gross profit 1,634,589 1,486,391
Selling expenses (676,516) (677,436) Administrative expenses (595,780) (530,696) Other income (expenses), net (17,073) 8,982 (1,289,369) (1,199,150) Operating profit 345,220 287,241
Financial expenses (177,749) (167,753) Financial income 46,401 72,382 Financial expenses, net (131,348) (95,371) Profit before income tax 213,872 191,870
Income tax 12 12,066 101,028 Profit before discontinued operations 225,938 292,898
Discontinued operations - (71,542) Consolidated net income Ps. 225,938 Ps. 221,356
Net income attributable to: Controlling interest Ps. 225,249 Ps. 220,565 Non-controlling interest 689 791 Consolidated net income Ps. 225,938 Ps. 221,356
Basic and diluted earnings per share attributable to controlling interest, in Mexican pesos:
Continuing operations Ps. 0.51 Ps. 0.50
Discontinued operations Ps. Ps. (0.16)
Net income Ps. 0.51 Ps. 0.50
Number of outstanding shares 439,188,294 439,188,294
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
A-8 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
(Thousands of Mexican pesos)
March 31
2013 2012
Consolidated net income Ps. 225,938 Ps. 221,356 Other comprehensive income (loss), net of taxes:
Items that will be reclassified to the income statement: Foreign currency translation adjustment 3,250 52,492
Consolidated comprehensive income Ps. 229,188 Ps. 273,848
Consolidated comprehensive income attributable to: Controlling interest Ps. 228,499 Ps. 273,057 Non-controlling interest 689 791 Ps. 229,188 Ps. 273,848
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
A-9 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of changes in equity (unaudited) As of March 31, 2013 and 2012
(Thousands of Mexican pesos)
Effects Total Additional Reserve for of foreign stockholders Total Total Capital paid-in Retained repurchase currency equity attributable non-controlling stockholders stock capital earnings of shares translation to shareholders interest equity
Balances as of January 1, 2012 Ps. 1,458,286 Ps. 2,778,226 Ps. 3,536,012 Ps. 110,000 Ps. 108,610 Ps. 7,991,134 Ps. 23,382 Ps. 8,014,516
Comprehensive income: Net income - - 220,565 - - 220,565 791 221,356 Foreign currency translation adjustment - - - - 52,492 52,492 52,492 Total comprehensive income - - 220,565 - 52,492 273,057 791 273,857 Balances as of March 31, 2012 1,458,286 2,778,226 3,756,577 110,000 161,102 8,264,191 24,173 8,288,364
Balances as of January 1, 2013 1,458,286 2,778,226 3,836,677 130,000 60,395 8,263,584 26,131 8,289,715
Comprehensive income: Net income - - 225,249 - - 225,249 689 225,938 Foreign currency translation adjustment - - - - 3,250 3,250 3,250 Total comprehensive income - - 225,249 - 3,250 228,499 1,164 229,188 Balances as of March 31, 2013 Ps. 1,458,286 Ps. 2,778,226 Ps. 4,061,926 Ps. 130,000 Ps. 63,645 Ps. 8,491,608 Ps. 26,820 Ps. 8,518,903
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
A-10 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of cash flows (unaudited)
For the three months ended March 31, 2013 and 2012
(Thousands of Mexican pesos)
March 31 Operating activities: Note 2013 2012
Profit before income tax Ps. 213,872 Ps. 191,870 Depreciation and amortization 89,679 95,538 Allowance for doubtful receivables 220,542 218,876 Gain on sale of property, leasehold improvements, furniture and equipment (464) (372) Liabilities for labor benefits 8,378 5,872 Interest income (249) (317) Interest expenses 340,771 307,738 Increase in trade receivables (161,672) 116,499 Increase in inventories (12,252) (100,466) Increase in other accounts receivable (171,817) (106,101) Increase (decrease) in suppliers (362,510) (520,279) Decrease in accounts payable and accrued expenses (46,822) (301,612) Income tax paid (5,142) (17,638) Demand deposits and time deposits 865,624 592,496 Interests to bank depositors (163,022) (139,985) Exchange gain and losses, net (152,384) (267,755) Net cash flows from operating activities 662,532 74,364
Investing activities:
Acquisition of property, leasehold improvements, furniture and equipment (40,790) (20,939) Proceeds from sale of property, leasehold improvements, furniture and equipment 5,863 1,454 Interest received 249 317 Net cash flow used in investing activities (34,678) (19,168)
Financing activities:
Interest paid (254,111) (262,935) Proceeds from current and non-current debt and bank loans 833,625 796,670 Payments of current and non-current debt and bank loans (512,838) (557,722) Net cash flow (used in) from financing activities 66,676 (23,987)
Increase in net cash and cash equivalents 694,530 31,209 Adjustments to cash flow as a result of changes in exchange rates 257 4,667 Cash and cash equivalents at the beginning of the period 4 1,528,727 1,261,454 Cash and cash equivalents at the end of the period 4 Ps. 2,223,514 Ps. 1,297,330
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
A-11 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
(Thousands of Mexican pesos, except where otherwise indicated)
Note 1 - General information:
Grupo Famsa, S. A. B. de C. V. and subsidiaries (hereinafter, “Famsa”, “Company” or “Grupo Famsa”) is a leading company in the Mexican retail sector, satisfying families’ different purchasing, financing and saving needs. The Company is controlled by a trust whose beneficiaries are the Garza Valdéz family. The address of the Company and its corporate office is Ave. Pino Suárez No. 1202 Nte., Zona Centro, Monterrey, Nuevo León, Mexico. Grupo Famsa started operations in 1970.
Grupo Famsa has developed a solid portfolio of complementary businesses based on consumer credit and savings, which supports a large part of the financing needs of its operations. As of March 31, 2013, Grupo Famsa operates a network of 355 stores with 305 bank branches in 26 Mexican states, as well as 25 stores in two of the states with the largest Hispanic population in the United States of America (USA), focused on selling various types of electronic appliances, furniture, clothing, household appliances, cellular phones, motorcycles and other consumer durable goods. The sales operations are carried out in cash and credit, wholesale and directly to the general public.
The Company is listed on the Mexican Stock Exchange, and in order to perform its financial activities in Mexico it has obtained the authorization of the Ministry of Finance and Public Credit to operate Banco Ahorro Famsa, S. A. Institución de Banca Múltiple as established by the Mexican Law of Credit Institutions, under the supervision and surveillance of the National Banking and Securities Commission (the Commission) and Banco de México (Banxico).
The condensed consolidated interim financial statements were authorized for its issuance on April 29, 2013, by the Company officers who have signed the consolidated financial statements and the accompanying notes. They are subject to the approval of the ordinary shareholders’ meeting, which is legally empowered to make such changes as it considers necessary
Note 2 - Summary of significant accounting policies:
The accounting policies adopted are consistent with those of the previous fiscal year except as described below.
Grupo Famsa has adopted the following standards, together with the consequential amendments to other IFRSs, for the quarter ended March 31, 2013.
IAS 1 (amended) - “Presentation of Financial Statements”. The amendment requires entities to separate the items presented in other comprehensive income in two groups based on whether they can be recycled to the income statement in the future or not. Items that cannot be recycled will be presented separately from items that can be recycled in the future. Entities that decide to present items of other comprehensive income before taxes should show taxes related to the two groups separately. The amendment affected presentation only and had no impact on the Company’s financial position or performance.
A-12 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
IFRS 10 “Consolidated Financial Statements”, objective is to establish the principles for the presentation and preparation of consolidated financial statements when an entity controls one or more entities based on some of the concepts currently considered. This new standard changes the definition of the principle of control and provides additional guidance for determining control for more complex situations. The standard is a replacement of IAS 27 “Consolidated and Separate Financial Statements” and SIC 12 “Consolidation - Special Purpose Entities”. The standard is mandatory from January 1, 2013. As a result of this adoption there were no effects on consolidation.
IFRS 12 “Disclosure of Interests in Other Entities” requires disclosure of information that enables users of financial information to evaluate the nature and risk associated with their interest in other entities, including joint arrangements, associates, special purpose entities and other off-balance sheet entities, in addition to the effects of those interests in its financial position and performance, and its cash flows. None of these disclosure requirements are applicable for interim condensed consolidated financial statements, unless significant events and transactions in the interim period requires that they are provided. Accordingly, the Company has not made such disclosures.
IFRS 13 “Fair Value Measurement” objective is to define the fair value and establish in a single standard a framework for measuring fair value and disclosure requirements on these measurements. This standard applies when other IFRS require or permit fair value measurement, except for transactions within the scope of IFRS 2 “Share-based Payments”, IAS 17 “Leases”, measurements that have similarities to fair value but are not considered as such, and the net realizable value under the scope of IAS 2 “Inventories” or the value in use in IAS 36 “Impairment of Long-Lived Assets”. The application of IFRS 13 has not materially impacted the fair value measurements carried out by the Company.
2.1 Basis of preparation
These condensed consolidated interim financial statements for the three months ended March 31, 2013 have been prepared on a historical basis and in accordance with IAS 34, ‘Interim financial reporting’. The condensed interim consolidated financial statements should be read in conjunction with the annual financial statements for the year ended December 31, 2012, which have been prepared in accordance with IFRS.
In preparing of the condensed consolidated interim financial statements requires the use of certain critical accounting estimates. Additionally, it requires the Company’s management to use judgment in the process of applying the accounting policies of the Company and the reported amounts of assets and liabilities, income and expenses. Actual results may differ from the estimates.
In preparing these condensed consolidated interim financial statements, the significant judgments made by the management in the process of applying the Company's accounting policies and the key sources of estimation uncertainty were the same as those that applied to the consolidated financial statements for the year ended December 31, 2012, with the exception of changes in estimates that are required in determining the provision for income tax. See Note 12.
A-13 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
2.2 Seasonality
Due to the seasonal nature of the retail segment, higher revenues and operating profits are usually expected in the second and fourth quarters of the year as a result of the increase in consumer spending associated with Mother’s Day (in May), Buen Fin (Weekend Sale in November) and the Christmas holiday season. Unlike the revenues, operating costs (excluding the cost of the merchandise sold), distribution costs and a portion of marketing and advertising expenses are relatively constant throughout the year and therefore, generally do not correlate with the sales percentage. Accordingly, the financial performance and results of operations are influenced by these seasonal factors.
Note 3 - Risk Management:
An integral risk management process refers to the set of objectives, policies, procedures and actions that are implemented to identify, measure, monitor, limit, control, report and disclose the different types of risk to which the Company is exposed.
Those responsible for risk management and their functions are:
The Board of Directors, whose responsibility is to approve the objectives, guidelines and policies for risk management. Internal Audit, which is responsible for carrying out all the activities necessary in order to comply with the policies defined by the Board of Directors.
The Company is exposed to several market and financial risks. a) Market Risk I. Interest rate risk II. Exchange rate risk b) Liquidity Risk c) Credit Risk d) Capital Risk
For greater detail of these risks, please refer to the consolidated financial statements as of December 31, 2012 and 2011 and January 1, 2011.
Note 4 - Cash and cash equivalents:
Cash and cash equivalents comprised the following: March 31, December 31, 2013 2012
Cash at bank and in hand Ps. 424,991 Ps. 461,359 Investments 1,798,523 1,067,368 Total Ps. 2,223,514 Ps. 1,528,727
Note 5 - Restricted cash:
Restricted cash represents cash with limited availability in Banco Ahorro Famsa due to banking regulations of Ps. 361,542 and Ps. 254,905 as of March 31, 2013 and December 31, 2012, respectively. The restricted cash balance is classified as a non-current asset in the statement of financial position of the Company based on the expiration date of the restriction.
A-14 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
Note 6 - Trade receivables: March 31, December 31, 2013 2012 Trade receivables: Mexican consumer Ps. 15,815,445 Ps. 15,612,927 Mexico commercial 2,375,289 2,392,702 USA consumer 2,003,246 2,244,983 20,193,980 20,250,612 Less – allowance for doubtful accounts (1,037,392) (1,035,154) Total, net Ps. 19,156,588 Ps. 19,215,458
Current trade receivables Ps. 18,424,551 Ps. 18,546,393
Non-current trade receivables Ps. 732,037 Ps. 669,065
Movements of the impairment allowance for doubtful accounts:
March 31, December 31, 2013 2012 Opening balance (Ps. 1,035,154) (Ps. 966,391) Increases (220,542) (1,542,066) Recoveries 218,304 1,473,303 Ending balance (Ps. 1,037,392) (Ps. 1,035,154)
The behavior of aging as of March 31, 2013 in trade receivables was similar as reported at December 31, 2012.
Note 7 - Other accounts receivable: March 31, December 31, 2013 2012 Prepaid expenses (1) Ps. 285,265 Ps. 186,963 Discounts from suppliers (2) 227,542 265,254 Employee debtors (3) 43,720 27,510 Other debtors (4) 233,716 233,200
Total Ps. 790,243 Ps. 712,927
(1) Includes primarily prepayments for advertising, insurance and leasing. (2) Discounts negotiated with suppliers based on volume of sales in the normal course of operations, and promotions receivable. (3) Consists primarily of accounts receivable for expenses pending to be checked. (4) Includes primarily commissions receivable, other accounts receivable for money transfers and payments in advance to suppliers.
A-15 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
Note 8 - Demand deposits and time-deposits:
As of March 31, 2013 and December 31, 2012, the Company’s deposits with third parties were as follows:
March 31, December 31, 2013 2012 Demand deposits: Savings deposits (interest bearing) Ps. 2,087,193 Ps. 2,191,438 Checking accounts (non-interest bearing) 276,953 314,092
Time-deposits: From the general public 10,500,742 9,493,734 Total demand deposits and time-deposits Ps. 12,864,888 Ps. 11,999,264
In accordance with the terms negotiated, the Company’s deposits as of March 31, 2013 and December 31, 2012 are presented as follows:
March 31, December 31, 2013 2012
Short-term demand deposits and time-deposits Ps. 8,064,195 Ps. 8,382,497
Long-term demand deposits and time-deposits 4,800,693 3,616,767 Total demand deposits and time-deposits Ps. 12,864,888 Ps 11,999,264
Since the beginning of 2013, the Company’s commercial strategy focused in obtaining long-term demand deposits and time-deposits by increasing the interest rate paid, therefore this figure increased 32.7% during the 1st quarter.
A-16 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
Note 9 - Short-term and long-term debt:
The total consolidated debt was as follows:
March 31, December 31, Interest 2013 2012 rate (*) Grupo Famsa: Mexican pesos: Financial factoring (1): Financiera Bajío, S. A. SOFOM, ER Ps. 99,979 Ps. 30,629 8.44%(b) Arrendadora y Factor Banorte, S. A. de C. V. SOFOM, ER 382,946 392,704 8.01%(b) Banco Monex, S. A. 114,121 124,845 7.58%(b) 597,046 548,178 Amounts drawn down from short-term revolving credit lines: Banco del Bajío, S. A. 100,000 - 7.82%(b) Banco Santander Serfin, S. A. 100,000 100,000 8.49%(b) Banorte, S. A. 199,795 199,795 8.09%(a) BBVA Bancomer, S. A. 113,500 63,500 7.22% (a) CI Banco, S. A. 50,000 50,000 7.08%(b) Issuance of debt certificates: Short-term (2) 2,000,000 1,000,000 7.15% (b) Long-term (2) 1,000,000 7.65% (b) 2,563,295 2,413,295
Debt in U.S. Dollars presented in Mexican pesos: Issuance of foreign debt: Senior notes Rule 144A/Reg.S (3) 2,435,884 2,554,036 11.00% (a) Euro–commercial paper (4) 618,060 518,632 7.36% (a) 3,053,944 3,072,668 Banco Ahorro Famsa, S. A., Institución de Banca Múltiple: Entered into in Mexican pesos: Nacional Financiera, S.N.C. (NAFIN) (5) 5,114 9,575 8.46% (b)
Famsa USA: Debt in U.S. Dollars presented in Mexican pesos: Deutsche Bank AG (6) 98,890 103,726 2.39% (a) Total debt 6,318,289 6,147,442 Short-term debt (3,877,291) (2,583,831) Long-term debt Ps. 2,440,998 Ps. 3,563,611
(*) Nominal rates (a) fixed and (b) variable, as of March 31, 2013 and December 31, 2012. Interest is accrued monthly.
A-17 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
(1) The Company entered into factoring credit line contracts with suppliers. Interest is calculated applying to the discounted amount the rates that financial institutions apply for this type of operations, according to the discount period. These liabilities are settled in an average period of 110 days. The relevant characteristics of each factoring credit line are presented below:
Renewal date of the Interest Financial institution credit line Credit limit rate Financiera Bajío, S. A. SOFOM, ER September, 2012 Ps.100,000 TIIE+4.0 Arrendadora y Factor Banorte, S. A. de C. V. SOFOM, ER March, 2010 Ps.400,000 TIIE+3.5 Banco Monex, S. A. October, 2012 Ps.125,000 TIIE+3.0
(2) In 2011, the Company entered into a medium-term note program for up to Ps. 2,000 million of a revolving nature for a five-year term. On March 25, 2011, the Company issued certificates for an aggregate principal amount of Ps. 1,000 million pursuant to such unsecured commercial paper program at a spread of 280 basis points over the TIIE interbank rate and maturing in March 21, 2014. The net proceeds of this issue were used to refinance debt maturing in 2011. This commercial paper is guaranteed by the retail, manufacturing and other subsidiaries. The effective interest rate of this issuance as of March 31, 2013 and December 31, 2012 was 8.28%.
(3) In July 2010, the Company issued senior notes for an amount of US$ 200 million, under Rule 144A/Reg. S, in the foreign market, at a rate of 11%, maturing in July 2015. The senior notes are guaranteed by the retail, manufacturing and other subsidiaries. The notes were assigned “B” and “B+” ratings by Standard & Poor’s and Fitch Ratings, respectively. As of March 31, 2013 and December 31, 2012, the fair value of the senior notes was Ps. 2,645,297 and Ps. 2,894,800, respectively. The effective interest rate of this issuance as of March 31, 2013 and December 31, 2012 was 12.28%.
(4) On February 15, 2012, the Company issued notes for US$40 million at a rate of 8.50%, from a commercial euro paper program established in 2009 for a total of US$100 million. The net proceeds of the notes were used by the Company to refinance the existing debt at that date and it matured on February 15, 2013. On the maturity date the debt was renewed with a new maturity on February 4, 2014, increasing the amount to US$50 million at a rate of 7.36%.
(5) Loans contracted by BAF with NAFIN for a total amount of Ps. 5.1 million, with an interest rate of 8.46% and maximum maturities on September 2014 and December 2015.
(6) On October 16, 2012, the Company renewed its credit line for a maximum amount of EUR 6.6 million or its equivalent in US dollars. As of December 31, 2012, the Company had drawn down a total of US$8 million; this borrowing bears interest at an annual rate of 2.39% maturing on October 16, 2013.
As of March 31, 2013 and December 31, 2012, the Company had satisfactorily complied with all related covenants and restrictions.
A-18 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
Note 10 - Accounts payable and accrued expenses:
Accounts payable and accrued expenses comprised the following:
March 31, December 31, 2013 2012
Accounts payable to related parties (1) Ps. 217,220 Ps. 213,907 Interest payable 92,409 171,568 Withholding taxes 52,884 56,721 Short-term employee benefits (2) 49,799 50,209 Taxes related to employee payroll (3) 38,117 53,778 Accrued operating expenses (4) 23,526 46,283 Other creditors (5) 9,135 10,998
Total accounts payable and accrued expenses Ps. 483,090 Ps. 603,464
(1) Liability from operations with related parties. See Note 11. (2) Includes liabilities for accrued salaries payable, commission to sales personnel, vacations, vacation premium, savings fund, medical expenses and other. (3) Includes liabilities for accrued expenses for labor taxes and other. (4) Liability for expenses for water service, electricity, telephone, fuel, maintenance and other. (5) Includes self-financing contributions from customers, vehicle insurance and other.
Note 11 - Related parties:
As of March 31, 2013 the Company has accounts payable to affiliates of Ps. 217,220 (Ps. 213,907 as of December 31, 2012), related primarily to the following expenses:
2013 2012 Rent and administrative expenses (Note 14) Ps. 25,196 Ps. 25,270
Related party transactions were carried out at market value.
For the three months ended March 31, 2013 and 2012, salaries and benefits received by the principal executive officers of the Company amounted to Ps. 29,769 and Ps. 24,108, respectively, consisting of base salary amounts and legal benefits, complemented by a variable compensation program that is basically driven by the Company’s results.
The Company and its subsidiaries declare they have no significant transactions with related parties or conflicts of interest to disclose.
A-19 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
Note 12 - Income taxes:
Income tax expense is recognized based on management’s estimate of the weighted average annual income tax rate expected for the full financial year. The estimated average annual tax rate used for 2013 is 10% (the estimated tax rate for the three months ended March 31, 2013 was 6%).
Note 13 - Contingencies:
In the normal course of operations the Company is involved in disputes and lawsuits. The Company believes there are no legal proceedings or threatened claims against or affecting the Company which, in the event of an adverse resolution, could significantly affect, individually or taken together, the Company’s results of operations or financial position.
Note 14 - Commitments:
The majority of the subsidiary companies have entered into long-term lease agreements (some with related parties) covering properties occupied by their stores. Following is a description of the main agreements entered into with related parties:
As of March 31, 2013, the Company had 42 long-term lease agreements in place with the controlling shareholders and various entities controlled by them, with regard to the retail space used by several stores. The terms of all such agreements are substantially identical and are consistent with standard industry practices and real estate market prices.
The Company has entered into various asset management agreements with affiliates and other entities controlled by the principal shareholders, covering account collection services and the management and investment of the proceeds of such collections, in exchange for a commission payable on an annual basis.
Rentals payable under lease agreements are as follows:
Related parties Other Total 2014 Ps. 26,455 Ps. 178,965 Ps. 205,420 2015 to 2018 105,822 715,858 821,680 Ps. 132,277 Ps. 894,823 Ps. 1,027,100
For the three months ended March 31, 2013 and 2012 total rental and administrative services expense is as follows:
2013 2012 Related parties Ps. 25,196 Ps. 25,270 Other 170,442 163,096 Total Ps. 195,638 Ps. 188,366
A-20 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
Note 15 - Information by business segments:
15.1 Segment reporting
The Company manages and evaluates its continuing operations through three business segments: Mexico (national retail stores and financial sector), USA, (foreign retail stores) and other businesses in Mexico (wholesale, manufacturing of furniture and footwear, catalog business). The Company controls and evaluates its continuing operations on a consolidated basis. Its activities are carried out through its subsidiary companies.
The Company’s management uses operating income before depreciation and amortization as the measurement of segment performance as well as to evaluate development, make general operating decisions and assign resources. The information by business segment is as follows:
March 31, 2013 Mexico USA Other Subtotal Intersegment Consolidated Net sales (1) Ps. 1,938,205 Ps. 266,517 Ps. 145,449 Ps. 2,350,171 (Ps. 126,484) Ps. 2,223,687 Interest earned from customers 904,873 124,426 67,905 1,097,204 (59,051) 1,038,153
Total revenues Ps. 2,843,078 Ps. 390,943 Ps. 213,354 3,447,375 (Ps. 185,535) Ps. 3,261,840 Cost of sales (1,419,578) (214,046) (177,493) (1,811,117) 183,866 (1,627,251)
Gross profit 1,423,500 176,897 35,861 1,636,258 (1,669) 1,634,589 Operating expenses (2) (1,017,072) (150,760) (30,481) (1,198,313) 15,696 (1,182,617) Other income (expenses), net (1,383) 287 (1,920) (3,016) (14,057) (17,073) Operating profit before depreciation and amortization 405,045 26,424 3,460 434,929 (30) 434,899 Depreciation and amortization (87,238) (1,060) (1,381) (89,679) - (89,679) Operating profit (loss) Ps. 317,807 Ps. 25,364 Ps. 2,079 Ps. 345,250 (Ps. 30) Ps. 345,220 Additional disclosures: Capital expenditure Ps. 38,015 Ps. 2,640 Ps. 42 Ps. 40,697 Ps. - Ps. 40,697 Adjusted EBITDA Ps. 568,067 Ps. 26,424 Ps. 3,460 Ps. 597,951 (Ps. 30) Ps. 597,921
March 31, 2012 Mexico USA Other Subtotal Intersegment Consolidated Net sales (1) Ps. 1,768,255 Ps. 275,158 Ps. 136,315 Ps. 2,179,729 (Ps. 132,191) Ps. 2,047,538 Interest earned from customers 842,930 131,169 64,982 1,039,080 (63,015) 976,065 Total revenues Ps. 2,611,185 Ps. 406,327 Ps. 201,297 Ps. 3,218,809 (Ps. 195,206) Ps. 3,023,603 Cost of sales (1,328,309) (220,003) (180,846) (1,729,158) 191,946 (1,537,212) Gross profit 1,282,876 186,324 20,451 1,489,651 (3,260) 1,486,391 Operating expenses (2) (939,020) (156,937) (29,716) (1,125,673) 13,079 (1,112,594) Other income (expenses), net 25,086 103 (3,345) 21,844 (12,862) 8,982 Operating profit before depreciation and amortization 368,942 29,490 (12,610) 385,822 (3,043) 382,779 Depreciation and amortization (82,385) (11,463) (1,690) (95,538) - (95,538) Operating profit (loss) Ps. 286,557 Ps. 18,027 (Ps. 14,300) Ps. 290,284 (Ps. 3,043) Ps. 287,241
Additional disclosures: Capital expenditure Ps. 15,976 Ps. 1,851 Ps. 243 Ps. 18,070 Ps. - Ps. 18,070 Adjusted EBITDA Ps. 508,928 Ps. 29,490 (Ps. 12,610) Ps. 525,808 (Ps. 3,043) Ps. 522,765
(1) Net sales realized in the respective countries shown above. (2) Excluding depreciation and amortization.
A-21 Grupo Famsa, S. A. B. de C. V. and subsidiaries Condensed consolidated interim statements of comprehensive income (unaudited) For the three months ended March 31, 2013 and 2012
15.2 Evaluation of operating performance
The Company evaluates operating performance based on a measure denominated “adjusted EBITDA”, which consists of adding to the operating profit interest expense on bank deposits, depreciation and amortization. The adjusted EBITDA is not a measure of financial performance under IFRS and should not be considered as an alternative to net income as a measure of operating performance or cash flows as a measure of liquidity.
The reconciliation between Adjusted EBITDA and operating profit for the three months ended on March 31, is as follows: 2013 2012 Operating profit Ps.345,220 Ps.287,241
Interest expense on bank deposits 163,022 139,986 Depreciation and amortization 89,679 95,538 Adjusted EBITDA Ps.597,921 Ps.522,765
15.3 Sales by product
Net sales by product for the three months ended March 31, were as follows: 2013 2012
Interest earned from customers Ps.1,038,153 Ps. 976,065 Furniture 519,695 528,966 Electronics 347,173 348,214 Appliances 369,379 265,932 Mobile phones 238,676 191,400 Computer equipment 181,978 178,376 Motorcycles 153,316 108,181 Clothing and footwear 91,186 84,948 Seasonal articles (air conditioners, heaters, etc.) 25,821 28,809 Income from commercial banking 49,356 40,964 Sport articles 32,583 31,072 Small appliances 32,421 28,269 Children’s articles and accessories 12,118 14,210 Other (1) 169,985 198,197 Ps.3,261,840 Ps. 3,023,603
(1) Includes primarily revenues from guarantees granted and sales through the commercial program denominated “Famsa to Famsa”.
Note 16 - Subsequent events:
In preparing the condensed consolidated interim financial statements, the Company has evaluated subsequent events and transactions from March 31, 2013 to April 29, 2013 (date of issuance of the financial statements) for their possible recognition or disclosure, and has concluded that there are no subsequent events requiring such recognition or disclosure.
A-22
ISSUER GRUPO FAMSA, S.A.B. DE C.V. Av. Pino Suárez 1202 Norte Piso 3, Unidad “A,” Zona Centro Monterrey, N.L., México 64000
LEGAL ADVISORS
To the Issuer
As to U.S. Federal and New York law: As to Mexican law:
Paul Hastings LLP Mijares, Angoitia, Cortés y Fuentes, S.C. 75 East 55TH Street Javier Barros Sierra 540 Cuarto Piso New York, NY 10022 Santa Fe, Alvaro Obregón U.S.A. México, D.F. 01210
To the Initial Purchasers
As to U.S. Federal and New York law: As to Mexican law: Cleary Gottlieb Steen & Hamilton LLP Creel, García-Cuéllar, Aiza y Enríquez, S.C. One Liberty Plaza Paseo de los Tamarindos 60 Piso 3 New York, New York 10006 Colonia Bosques de las Lomas U.S.A. México, D.F. 05120
INDEPENDENT ACCOUNTANTS OF THE ISSUER PricewaterhouseCoopers, S.C. Avenida Rufino Tamayo 100 Valle Oriente, San Pedro Garza García N.L., México 66269
TRUSTEE, PAYING AGENT, TRANSFER AGENT IRISH PAYING AGENT & LISTING AGENT & REGISTRAR The Bank of New York Mellon SA/NV Dublin The Bank of New York Mellon Branch 101 Barclay Street Hanover Building, Windmill Lane New York, New York 10286 Dublin 2, Ireland U.S.A.